Monday, February 08, 2016

Politico reporting that (minor?) changes are being made to Senate's SRCA bill to appease GOP critics

This notable new Politico article, headlined "Criminal justice bill will be changed after conservative objections," reports on changes being made to certain provisions of the Sentencing Reform and Corrections Act (which I have called SCRA 2015 since its introduction last fall).  Here are all the important details:

Senators who authored a criminal justice overhaul are preparing several key changes to their bill aimed at mollifying conservative critics.  In recent weeks, a handful of Senate Republicans — led primarily by Sen. Tom Cotton of Arkansas — have argued that the criminal justice reform bill would allow thousands of felons convicted of violent crimes to be released early from prison.  Supporters say that’s an unfair characterization, but now they are making changes meant to eliminate any chance that those criticisms could become reality.

One change involves Section 105 of the bill, which reduced enhanced mandatory minimum sentences for so-called “armed career criminals.”  Under the original proposal, certain felons who already had three violent felony or serious drug offense convictions, and were found guilty of possessing a firearm would face a 10-year enhanced mandatory minimum — lowered from the current 15-year minimum sentence. But the bill’s authors are planning to get rid of this section altogether so that the higher, 15-year sentence remains intact, a senior GOP aide said Monday.  The aide added that this section was the subject of the most complaints from conservatives.

The second major change is to Section 104 of the bill.  That section reduces enhanced mandatory minimum sentences for felons convicted of possessing a firearm while committing a drug crime or a violent offense, such as robbery.  Those changes could be applied retroactively for current inmates.  Now, the new version would specifically bar people convicted of firearm possession alongside a violent crime from being able to retroactively seek a reduced sentence.  Those changes would “substantively" lower the number of current prisoners who could be released early, the aide said.  “We have changed the bill to directly address those concerns and ensure that violent offenders will not benefit from relief under any of the provisions in the retroactive provisions,” the senior Republican aide said.

The changes are expected to be rolled out later this week with the support of all initial GOP and Democratic backers of the criminal justice reform measure — a bill that’s been eyed as one of the few bipartisan accomplishments that could get done in Washington during a polarized election year.  The legislation was introduced last fall with the backing of a diverse Senate coalition that includes Sens. Chuck Grassley of Iowa and Patrick Leahy of Vermont, the top Republican and Democrat on the Judiciary Committee; the two chief vote-counters of each party, GOP Sen. John Cornyn of Texas and Dick Durbin of Illinois; conservatives such as Sen. Mike Lee (R-Utah) and liberals including Sen. Cory Booker (D-N.J.).

But Senate Majority Leader Mitch McConnell (R-Ky.), aware of the divisions in his conference on the criminal justice measure, has so far declined to say whether he’ll put the bill on the floor this year.

I suspect many eager to see sweeping federal sentencing reforms will be disappointed to hear that SCRA 2015, which many reform advocates already believe does not go nearly far enough, is now being modified to restrict further the reach of reforms to certain mandatory minimum sentencing provisions.  But I am actually quite excited to hear this news because it reveals there are on-going efforts to address the stated concerns of current opponents of the bill.  If those concerns can be adequately addressed by what would appear, from the description above, only relatively small changes to a big bill, then I will become more optimistic again about the prospects of some significant statutory reform coming to Prez Obama's desk before he leaves the Oval Office.

Prior to hearing this news, I had been persistently pessimistic about SCRA 2015 ever even coming up for a full Senate vote given that prominent conservative Senators like Tom Cotton and Ted Cruz were voicing significant opposition.  But maybe these reported changes will be sufficient for Senate Majority Leader Mitch McConnell to be now willing to bring SCRA 2015 up for a vote.   Of course, this story does not mention the still heated debate over whether mens rea reform will become an integral part of the Senate's statutory reform activities, and thus this Politico news is anything but a guarantee that federal statutory sentencing reform is sure to become a reality.  Still, this Politico piece does encouragingly suggest the sausage factory that is federal lawmaking is continuing to grind its way forward on federal statutory sentencing reform.

Recent prior related posts on SRCA 2015:

February 8, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Sunday, February 07, 2016

FSR accounting of state of federal sentencing reform efforts at end of 2015

1.cover-sourceAs I try to provide here a "real-time" account of certain ups-and-downs with various federal statutory sentencing reform bills, I too rarely find the time to provide a more reflective accounting of what is afoot in this important criminal justice reform space.  Helpfully, my Federal Sentencing Reporter co-editor, Frank Bowman, has spent time recently assembling in FSR's pages some primary documents and cutting-edge commentary on this front.  Here is part of an email Franl authored providing a description of what he has put together for FSR:

For anyone interested in the details of the various pending pieces of legislation and analysis of the practical impact of the bills that have made it through the House and Senate Judiciary Committees, I commend you to the latest issue of the Federal Sentencing Reporter (Vol 28, No. 2), which contains the text or summaries of the various bills, as well as commentaries. 

In particular, for an overview and impact analysis, see my article, Good Enough to Be Getting on With? The State of Federal Sentencing Reform Legislation, December 2015.  The FSR issue also contains excellent work by Nora Demleitner of Washington & Lee and Paul Hofer, formerly of the Sentencing Commission and now with the Federal Defenders sentencing project, which can be found at this link. Here is the abstract of Frank's article linked above:

This Article addresses the current status of the push for federal sentencing and corrections reform, and describes and analyzes all of the major pieces of sentencing and corrections reform legislation pending in the United States Congress at the close of 2015.  In particular, it considers the Justice Safety Valve Act of 2015, the Smarter Sentencing Act of 2015, the SAFE Justice Act of 2015, and the most likely candidate for passage -- the Senate's Sentencing Reform and Corrections Act of 2015 (SRACA) and its counterpart in the House.  The Article discusses the merits and deficiencies of each bill, and estimates the likely effect of each on the population of current and future federal defendants and inmates.

The Article notes that the legislative proposals have become less expansive as the session has progressed, with each succeeding bill more cautious than the last.  The final section of the Article considers whether the result of Congress's efforts will be worthy of support by those who favor significant federal sentencing and corrections reform.  It concludes that, on balance, the front-end sentencing provisions of the legislation most likely to pass (SRACA) are "good enough to be getting on with," but that the back-end corrections measures with the most current legislative backing ought to be reconsidered and improved.

February 7, 2016 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Wednesday, February 03, 2016

Return of GOP jedis trying to keep sentencing reform efforts going in Congress

Last week via this post titled "GOP empire striking back against federal sentencing reform efforts in Congress," I noted this Politico article highlighting that a "cadre of conservative Republicans" were starting to line up against congressional statutory sentencing reform efforts.  The title of this post continues the galactic metaphor as a way to view these notable new press accounts of significant GOP voices trying to keep federal sentencing reform efforts moving forward:

From the New York Times here, "Senator John Cornyn Aims to Sway Fellow Republicans on Criminal Justice"

From Politico here, "Republicans press for criminal justice overhaul"

From BuzzFeed News here, "Koch Continues To Push Criminal Justice Bill As Momentum Fades On Hill"

Because lots of folks on both the left and right sometimes seem to think that the Koch brothers can use their massive wealth to "buy" legal reform, I will here highlight the first part of the BuzzFeed piece:

The momentum for criminal justice legislation is slowing down on Capitol Hill, but hundreds of miles away, Charles Koch — one of its biggest supporters — continued to aggressively make the case for it to pass this year, even as the billionaire becomes the face of one of the sticking points.  “The issue we’ve been working hard on is criminal justice reform, so if somebody makes one mistake, non-violent, it starts with this question: Do you have right to run your own life as long as you don’t violate the rights of others and you’re not bothering anybody?”  Koch said to donors on Sunday at the winter meeting of the political network affiliated with the industrialist brothers, which drew about 500 attendees.

Koch’s comments on the issue were part of an hour-long presentation on what he calls “Framework for Free Society,” which the billionaire believes will put the country back on the right track.  He views changes to the criminal justice system as a crucial component of the framework.  “You smoke a joint or violate some regulation … get arrested, put in prison and then come out, can’t get a job, so this destroys opportunities and makes the community less safe because you go in — and weren’t really criminals — and you are trying to get a job, so you steal if you can’t,” he said.

In addition to Koch himself advocating for looser sentencing laws, attendees also received a closed-door briefing on the issue Sunday morning, according to a schedule provided to donors.  BuzzFeed News was one of six news organizations to accept an invitation to cover parts of the network’s meeting after agreeing to certain ground rules. The largest-ever gathering of the Koch brothers’ political network this past weekend came as the path forward for criminal justice legislation — a high priority for the network’s donors — becomes increasingly uncertain in a presidential election year.

February 3, 2016 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (3)

Tuesday, January 26, 2016

"Congressionally Mandated Task Force Calls for Bold Transformation of Federal Corrections System"

CCTFThe title of this post is the headline of this press release which summarized the contents and import of a new report released this morning by the Charles Colson Task Force on Federal Corrections.  Here are excerpts from the press release (which includes a link to the report):

Today, the Charles Colson Task Force on Federal Corrections issued a set of bold recommendations to reform the federal justice system, enhance public safety, and save the government billions of dollars. In a new report, Transforming Prisons, Restoring Lives, the Congressionally mandated blue-ribbon panel released the findings of its year-long investigation into the nation’s overcrowded and costly federal prisons....

“We have laid out a detailed roadmap of ambitious, consensus-based recommendations that place public safety first while reserving prison for those who truly need it,” said task force chair, former Republican congressman from Oklahoma J.C. Watts, Jr. “If taken together, these reforms are projected to reduce the federal prison population by 60,000 people in the coming years and save more than $5 billion.”

Congress established the bipartisan panel in 2014 in response to mounting concerns about the scale and cost of the federal Bureau of Prisons (BOP), which currently houses 197,000 people with a budget of almost $7.5 billion this year. Alan Mollohan, the task force’s vice-chair, said that the seven-fold increase in the BOP’s population since the 1980s is unsustainable. 

"The BOP has been operating at crisis levels for decades," said Mollohan, a former Democratic congressman from West Virginia. "As a result, its policies and practices have not kept up with best practice in the field, presenting a missed opportunity to rehabilitate those who are confined in federal prisons and thus promote public safety.”...

In the report, the task force recommends that the federal justice system move away from its current “one size fits all” approach to meting out punishment and delivering treatment and programs. Instead, they advise that sentencing decisions and correctional responses be based on the individual case–an approach grounded in research evidence as the most effective means of reducing recidivism.

Observing that prison is expensive and imposes tremendous harm to individuals, families, and communities, the Task Force recommends that prison sanctions be used sparingly and long terms of incarceration be reserved for only the most serious federal crimes. They advise incentivizing participation in programs that are proven to lower recidivism and increase the odds of success for individuals reentering society. And, in following the example of successful reforms in states like Texas, Utah, Georgia, South Carolina, and Pennsylvania, they advocate for a more diversified, evidence-based approach to criminal justice that delivers public safety at less cost.

In more specific terms, the Task Force recommends that:

  • Mandatory minimum penalties for drug offenses should be reserved for “drug kingpins”–those found to have served a leadership role in a large cartel;
  • Program and treatment participation in prison should be incentivized through earned time off one’s sentence; and
  • The BOP should better assess the risks, needs, and assets of its population and align programming and treatment accordingly to reduce recidivism and enhance public safety.

Along with the release of this important report, J.C. Watts, the chair of the Charles Colson Task Force on Federal Corrections, authored this Washington Post commentary headlined "Prisons are full of low-level offenders. It’s time to rethink federal sentencing laws.: Americans believe in redemption, but for too long, our reflexive reliance on incarceration has left us little room to show it."

January 26, 2016 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Monday, January 25, 2016

GOP empire striking back against federal sentencing reform efforts in Congress

TomCottonThis new Politico article, headlined "Cotton leads effort to sink sentencing overhaul: A cadre of conservative Republicans is lining up against the bipartisan measure, imperiling its future," reinforces my long-standing concern that the prospects of significant statutory sentencing reform emerging from Congress gets dimmer every week that passes without movement forward on the bills that have made it through the judiciary committees.  Here is the first part of the article:

Sen. Tom Cotton, the hawkish upstart who's already made waves railing against the Iran nuclear deal and government surveillance programs, is now leading a new rebellion against a bipartisan effort to overhaul the criminal justice system — hoping to torpedo one of the only pieces of major legislation that could pass in President Barack Obama’s final year.

GOP tensions over a bill that would effectively loosen some mandatory minimum sentences spilled over during a party lunch last week, when Cotton (R-Ark.), the outspoken Senate freshman, lobbied his colleagues heavily against the legislation, according to people familiar with the closed-door conversation. The measure passed the Senate Judiciary Committee last fall with bipartisan support.

“It would be very dangerous and unwise to proceed with the Senate Judiciary bill, which would lead to the release of thousands of violent felons,” Cotton said later in an interview with POLITICO. “I think it’s no surprise that Republicans are divided on this question … [but] I don’t think any Republicans want legislation that is going to let out violent felons, which this bill would do.”

Cotton isn’t alone. Other Senate Republicans, including Sens. Jim Risch of Idaho and David Perdue of Georgia, also registered their strong opposition during the lunch, even as Sen. Mike Lee (R-Utah) vigorously defended the bill, which he helped negotiate. Risch stressed this message, according to one Republican source: Shouldn’t the GOP be a party of law and order?

Risch declined to elaborate on his concerns over the bill, saying he was displeased that his private remarks made during a party lunch were made public. But the deepening Republican split over reforming key elements of the criminal justice system — an effort years in the making that has been powered by an influential right-left coalition — may imperil whether Senate Majority Leader Mitch McConnell ultimately will take up the measure later in this election year.

Conservatives opposing the legislation are coalescing around Cotton’s view — despite strong pushback from bill supporters — that the measure could lead to the early release of people convicted and imprisoned for violent crimes. Sen. Ted Cruz (R-Texas), once a supporter of easing mandatory minimums for nonviolent drug offenders, has also made this argument. And there’s stiff resistance in pockets of the Republican Party to do anything that may erode its tough-on-crime reputation.

Backers of the bill say their changes to sentencing laws merely allow qualifying inmates to have their cases revisited by the same judge and prosecutor who landed them in prison. The judge would then have the discretion to hand down a reduced sentence. “It’s not true,” said Senate Majority Whip John Cornyn (R-Texas) of opponents’ insistence that violent criminals could be freed under the sentencing reforms. “I’d say, please read the bill and listen to people like [former Attorney General] Michael Mukasey who makes the point, which is a critical point, that there’s no get-out-of-jail-free card.”

But that perception, hardening among conservatives, is a serious obstacle for supporters of the bill like Cornyn, who as the Senate’s second-ranking Republican is the most influential GOP backer of the criminal-justice measure. And last week, McConnell — who is often hesitant to press ahead on issues that divide his 54-member conference — indicated a breather of sorts on the bill, saying GOP senators would take some time to get educated on the measure.

Those comments discouraged some supporters, since any major pause could spell doom for the bill this year. In a couple of months, the GOP-led Congress will turn its attention to its top legislative priority — budget and appropriations bills — while individual lawmakers shift into full campaign mode. “Members of the Judiciary Committee have been deeply involved on that issue, the rest of us have not,” McConnell told reporters of criminal justice reform. “So we’re going to be working through the process of bringing everybody in the Republican Conference up to speed on this very important issue, and we’re going to do that before any decision is made about floor time.”

The criminal justice overhaul isn’t limited to sentencing reforms. The measure also includes reforms to the prison system championed by Cornyn and Sen. Sheldon Whitehouse (D-R.I.) — changes that Cotton said he supports. And overhaul efforts also are complicated by the issue of so-called mens rea reform, with House Republicans and some GOP senators — including Orrin Hatch of Utah, the most senior Senate Republican — demanding changes to rules governing criminal intent.

But the sentencing changes are triggering the biggest — and most vivid — rift among Republicans. Cotton and other Republicans pointed to a triple murder earlier this month in Columbus, Ohio, where a man is accused of killing an ex-girlfriend and two of her children. The suspect, Wendell Callahan, had his prison sentence on drug charges reduced twice for a total of more than four years, according to The Columbus Dispatch.

January 25, 2016 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (2)

Tuesday, January 19, 2016

Former AG Michael Mukasey and other former DOJ leaders urge Senate to move forward with vote on sentencing and corrections reform

This new article from Roll Call, headlined "Former Officials Press Senate for Sentencing Bill Vote," reports on the latest inside-the-Beltway federal sentencing reform development. Here are the basics:

Dozens of former federal prosecutors and government officials sent a letter to the Senate leadership Tuesday urging a vote on a bipartisan bill to overhaul the nation’s criminal sentencing laws.

The letter to Majority Leader Mitch McConnell, R-Ky., and Minority Leader Harry Reid, D-Nev., seeks to counter concerns about the bill (S 2123) and instead focus on improvements it makes to the corrections system. “Otherwise, good policy reforms could easily fall victim to politics and fear,” the letter states.

Signers include Michael Mukasey, an attorney general under President George W. Bush, former FBI directors Louis J. Freeh and William S. Sessions, several former U.S. attorneys and several federal appeals court and district court judges....

McConnell, who makes the decision about floor votes, has not said if the Senate will vote on the bill. Majority Whip John Cornyn, R-Texas, a co-sponsor, has said that would happen in 2016. Judiciary Committee Chairman Sen. Charles E. Grassley, R-Iowa, is also pressing for a vote soon.

The momentum for a sentencing overhaul bill faces a challenge because of the tight schedule in an election year and the possibility that the Republicans won't retain their Senate majority. There is also opposition, including from a separate group of former federal prosecutors who sent a letter to leadership in December with concerns about the bill.

The letter sent by Mukasey and others Tuesday seeks to counter those concerns. It says the bill makes “modest, reasonable changes” that would amend “just a few sentencing policies that produced unintended consequences and created imbalance in the scales of justice.”

The bill ties longer mandatory minimum prison sentences to high-level drug traffickers and violent criminals, gives prosecutors new tools to seek enhanced penalties for violent criminals and gives federal prisons a way to make the public safer by reducing the number of inmates who commit crimes once released from their sentence.

“A drug dealer using a gun will still be subject to a significant mandatory minimum sentence for use of the firearm plus additional time for the underlying drug offense,” the letter states. “And since the Department of Justice has committed to a case-by-case review to ensure that any resentencing is done carefully and with complete transparency, offenders who pose a threat to public safety will not be released early.”

Having former GW Bush Attorney General Mukasey on this pro-reform letter strikes me as quite significant because he has been seemingly hesitatant to support big sentencing reforms in the recent past. I doubt this letter itself will dramatically change the political and practical dynamics of getting federal sentencing reform done in the coming months, but advocates of reform shold certainly be glad to have former AG Mukasey now on the reform bandwagon.

UPDATE: The letter signed by former AG Mukasey reference above is available at this link. Another similar letter urging federal sentencing reforms addressed to both House and Senate leaders signed by over 70 prominent police chiefs and federal prosecutors is available at this link.  In addition, this new Politico article, headlined "GOP split threatens sentencing overhaul," reports on the state of play in the Senate.  Here is how it starts:

Senate Majority Leader Mitch McConnell faces snowballing pressure to tackle an overhaul of the criminal justice system. But deep dissension within his own party — between pro-reform Republicans and law-and-order types — is threatening one of the few items on the congressional agenda with a real chance of becoming law this year.

January 19, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (5)

Monday, January 04, 2016

Excessive federal sentencing and strict mandatory minimums at center of armed "militia" occuptation in Oregon

23rd_Ohio_Volunteer_Infantry_Color_GuardBecause I am back to full-time teaching this week, I have not yet had much time to research closely the sentencing backstory seemingly inspiring a group of Americans to take up arms against the federal government in Oregon.  But a number of readers have made sure I did not miss that federal sentencing outcomes, and particularly the application of a 5-year mandatory minimum sentencing term, have been a central catalyst for what is now going on.  Helpful, this new lengthy Washington Post piece, headlined "What spurred the armed occupation of a federal wildlife refuge in southeast Oregon," provides some of the key sentencing details:

The several-hundred-person procession through Burns, Ore., concluded at Dwight Hammond’s doorstep early Saturday evening. In a town of less than 3,000 tucked in Oregon’s southeast corner, it was a massive show of support for Hammond, 73, and his son Steven, 46, as they prepared to report to federal prison Monday.

“I thank everyone who came out here today,” Dwight Hammond told the supporters after he and his wife hugged each of them. “See you in five years.” The father and son had been sentenced last year for setting fires on federal land, the conclusion of two decades of clashes between the Hammond family and the federal government that have made the ranchers a cause celebre for some on the right.

For their supporters, the Hammonds represent the latest battle in a struggle as old as the American settlement of the northwest: pitting poor cattle farmers against the federal government and its land regulations in states such as Oregon, where the government owns more than half of the land.

“Most Americans, if they knew the story of the threats and the charges brought against these ranchers, they would say this isn’t right,” said Jeff Roberts, one of the organizers of Saturday’s rally. “We really wanted to show the family support and let them know that they’re not alone. That Americans don’t turn their backs on them.”

But there is a stark divide among the ranks over how to best remedy the plight of the cattle rancher. Some activists, such as Roberts, think the battle will be won through a deliberate public awareness campaign, rallies and town hall meetings. Others, including some armed militias, have another tact in mind: armed resistance.

As Saturday’s rally concluded, a small subsection of attendees, led by Ammon Bundy, began launching into impromptu speeches and, to the horror of many of the rally’s primary organizers, declared that it was time for the group to take up arms. “Those who want to go take a hard stand, get in your trucks and follow me!” Bundy declared to the group at the conclusion of the event, according to several people who were in attendance. “We were just aghast,” Roberts said.

Within the hour, Bundy and about a dozen armed supporters had seized Malheur National Wildlife Refuge, posting armed men at the front gate and vowing to occupy the federal land for “years.”

His father, Cliven Bundy, a Nevada rancher who in 2014 had an armed standoff with federal agents who were attempting to prevent him from illegally grazing his cattle on federal land, who is not himself inside the refuge, told a reporter in Oregon that “150 militia men” had occupied the federal land. As of 6 p.m. Sunday, the armed men remained at the refuge. “There were absolutely not 150 of them,” Roberts said Sunday morning. “He had a small handful of supporters, maybe a dozen. I saw them as they pulled out in their trucks.”...

After a two-week trial, Dwight and Steven Hammond were convicted by jury. They were sentenced in October to five years in prison for committing arson on federal land in 2001 and 2006. The pair had been sentenced and served time previously, but on appeal a federal judge ruled that their initial sentences had been too short.

In the 2001 incident, the men, who had leased grazing rights to the land for their cattle, said they had started the fires on their own land to try to prevent the spread of an invasive species of plant, and that the fire had inadvertently burned onto public land. Prosecutors said the fire consumed 139 acres of public land, and was set in an attempt to hide evidence after the men were part of a hunting party that illegally killed several deer on the federal land.

In 2006, the Hammonds allegedly set a “back fire” meant to protect their land after a series of lightning storms had started a fire on the federal property. Prosecutors said that fire then spread onto the federal land.

“We all know the devastating effects that are caused by wildfires. Fires intentionally and illegally set on public lands, even those in a remote area, threaten property and residents and endanger firefighters called to battle the blaze” Acting U.S. Attorney Billy Williams said in a statement issued after the Hammonds were sentenced. “Congress sought to ensure that anyone who maliciously damages United States’ property by fire will serve at least 5 years in prison. These sentences are intended to be long enough to deter those like the Hammonds who disregard the law and place fire fighters and others in jeopardy.”

The sentence outraged many fellow ranchers and constitutionalist groups in the northwest, who considered the case an overreach of federal regulation and of the federal prosecutors. “We don’t agree with the sentencing, so we came out to stand in solidarity and support,” said Brandon Curtis, president of the Idaho chapter of Three Percent, a constitutionalist group that was heavily involved in organizing the rally for the Hammonds.

Most infuriating about the Hammond case, their supporters say, is that the two men were charged under a federal terrorism statute that requires a five-year mandatory minimum sentence for anyone convicted of arson on federal property. “I don’t think anybody would argue that arson took place . . . but to sentence this family as terrorists, we think that is absolutely egregious,” Roberts said. “These are just country folk, they’re not terrorists.”

Roberts, Curtis and others traveled to the Hammond home in recent weeks and began holding town hall meetings to try to build more local support for them — assuring residents that they were not there to “upend the town.” Despite encountering a lot of local skepticism, the men eventually found some allies — who started an organization called Harney County Committee of Safety and participated in Saturday’s rally.

But at the same time, the Bundy family had begun speaking out on behalf of the Hammonds. In early November, Ammon Bundy began posting updates on the case to his Facebook pages and website. “This last Wednesday I spent a good part of the day in the Hammond’s home. We spoke for hours. Several times, I found the Hammond’s in tears when they explained the injustices that has destroyed their lives,” Ammon Bundy wrote on Nov. 21. “They were hopeful that the American people were going to stand for them. And that, just maybe, they would be able to return to the life they once knew.”

January 4, 2016 in Mandatory minimum sentencing statutes, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7)

Sunday, January 03, 2016

Florida prosecutors honoring Army vet by threatening 120-years mandatory imprisonment for firing two shots in air

15014616This local story from Jacksonville, headlined "Trial set to begin for Jacksonville man facing 120 years in prison for firing 2 shots," highlights why I find so many mandatory minimum sentencing statutes troublesome and why I worry about the extreme sentencing powers that these kinds of provisions often give to local, state and federal prosecutors.  Here are the details of a Florida criminal justice story with many factors that likely undermines the public's faith in the soundness, sensibility and efficacy of modern criminal justice systems:

A Jacksonville man scheduled for trial this week faces a 120-year sentence if convicted, although no one was hurt during the six aggravated assaults he was charged with using a deadly weapon.  Under Florida’s 10-20-Life law, Circuit Judge Jack Schemer would have no choice but to sentence 58-year-old Randal Ratledge to 20 years for each count.  Jurors likely would not be aware of the mandated sentence.

Defense attorneys say Ratledge, a military veteran, does not belong in prison for the rest of his life and are critical of prosecutors for not waiving the requirement.  Attorney Bill Sheppard said he’d be willing to plead Ratledge guilty if prosecutors would waive 10-20-Life and let Schemer impose any sentence that the judge thought was just. But the best offer he’s gotten is 18 years in prison, and that’s essentially a life sentence for someone Ratledge’s age, Sheppard said.

“The problem with our system now is judges have no discretion,” Sheppard said. “Prosecutors decide the sentence, not judges.”  

The state’s 10-20-Life law requires that anyone convicted of a crime involving the firing of a gun gets at least 20 years in prison, with the only exception being someone who fired a warning shot when they have a legitimate reason to feel threatened.  The law requires a 10-year prison sentence when someone uses a gun during the commission of a crime, but doesn’t fire the weapon.

According to police reports, Ratledge was talking with friends and neighbors near his Panther Ridge Court home in August 2012 when he went into the house and came back with a gun.  He fired a shot in the air, then ran at the people outside screaming profanities while firing a second shot in their direction.  

State attorney spokeswoman Jackelyn Barnard said prosecutors have been in discussions with defense attorneys over the case. “While we cannot get into specifics pretrial, the state has considered all options which includes the waiving of the 20-year minimum mandatory,” Barnard said.  The Legislature has given prosecutors discretion to waive a minimum mandatory in appropriate cases, and State Attorney Angela Corey used this discretion when she concluded it is appropriate, Barnard said.

Attorney Bryan DeMaggio, who also is representing Ratledge, said he fired two shots in the air and not in the direction of any of his neighbors.  DeMaggio and Sheppard plan to argue that he was “involuntarily intoxicated” because he had a bad reaction to an Ambien pill and doesn’t remember firing the gun. “He remembers taking the Ambien, and then he remembers being in shackles,” DeMaggio said.

Ratledge didn’t understand what he was doing and is not responsible for his actions, DeMaggio said. Ambien is usually used to help someone sleep, often to help people suffering from insomnia.  Prosecutors have previously argued that the six people next door were in fear for their lives and traumatized by the experience.

The jury that hears the case is not supposed to know Ratledge faces 120 years.  Jurors usually aren’t advised what sentence a defendant faces and are told their only responsibility is to determine whether the defendant is guilty. Sheppard and DeMaggio asked Schemer to make an exception in this case and allow jurors to know, but the judge denied their request.

This is the second time Ratledge will go on trial. He was previously convicted of the same charges, but that conviction was thrown out before sentencing when Circuit Judge James Daniel ruled that Ratledge’s Fifth Amendment right against self-incrimination was violated during the trial.  Officer C.R. Deal, who questioned Ratledge the night he fired the shots, testified in front of the jury that Ratledge told him “he made a mistake and that he did not want to talk about the incident.”  Daniel found that the comment unfairly prejudiced the jury since they knew Ratledge had invoked his right to remain silent, and exercising that right should not be held against a criminal defendant.

Jury selection is scheduled to begin Monday. Which could be bad timing for Ratledge. The Florida Legislature is considering a bill that would remove aggravated assault from the list of crimes that fall under 10-20-Life. The legislation unanimously passed criminal justice subcommittees in both the Florida House and Senate, but if it becomes law it will likely take until spring or summer....  DeMaggio said the legislation as it’s now written would not be retroactive, so if Ratledge is convicted this month his sentence would be unlikely to be overturned.

Sheppard said Ratledge is holding up well. He is out on bail but required to stay in his home most of the time. “He’s a soldier trained by the U.S. Army,” Sheppard said.  “He was trained to deal with it.”

Among the aspects of this case that I find so frustrating is the way in which an extreme mandatory minimum sentencing statute is precluding the just and efficient resolution of a criminal matter seemingly because state prosecutors are unwilling to trust a judge to impose a fair and appropriate sentence on an Army veteran who, it seems, simply acted very badly when having a dispute with neighbors. Even if one thinks the defendant's "Ambien defense" is a bunch of BS, I am hard-pressed to understand why it would be appropriate for an Army vet to be facing decades in prison for foolishly firing some shots in the air in the midst of a summer squabble. And, critically, it seems that the defendant and his attorney have long been willing to resolve this case without the expense now of TWO criminal trials if prosecutors were just willing to let this case be resolved like most of us think cases ought to be resolved: with a neutral judge imposing a sentence after hearing advocacy from the prosecution and defense about what sentence would be fitting.

But for reasons that need not be explained in any way and that are not subject to any review, it seem a group of local prosecutors have decided that they want this Army vet to die in prison for his horrific acts of firing shots in the air one day in August 2012. And because of Florida's 10-20-Life mandatory minimum sentencing laws, these prosecutors have the exclusive power to demand that this vet essentially give up the rest of his life to resolve this case. Perhaps if prosecutors had to explain their charging and bargaining behavior in this case, I could better understand why they have taken such a seemingly ridiculously tough sentencing posture. But they do not, and that is my most fundamental gripe with mandatory minimum sentencing statutes: they not only give prosecutors extreme charging/bargaining/sentencing powers, but they enable prosecutors to exercise this power without being subject to any transparency, review or accountability. Grrr.

January 3, 2016 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (15)

Monday, December 14, 2015

Will Senate leader ever bring latest federal sentencing reform bill up for a full Senate vote?

The question in the title of this post is prompted by this notable inside-the-Beltway report from the New York Times headlined "Mitch McConnell Demurs on Prospects of Criminal Justice Overhaul."  Here are excerpts:

Despite a concerted push from a broad right-left coalition, Senator Mitch McConnell said he had not determined whether he would bring a bipartisan criminal justice overhaul to the Senate floor next year.  “I haven’t decided yet,” Mr. McConnell, the Kentucky Republican and majority leader, said in an interview on Thursday as he began looking toward 2016.

The Senate leader definitely seemed open to the idea.  He said the proposal, which would reduce some mandatory minimum sentences, lead to early release for thousands of nonviolent offenders and set up new programs to help them adjust to life after prison, seemed to meet his criteria for allocating precious Senate floor time.

“It seems to have pretty broad bipartisan support,” Mr. McConnell said of the criminal justice legislation approved by the Judiciary Committee in October.  “This is the kind of thing, when you look at it, you have principals on both sides who are interested in it.  That makes it worthy of floor time.”

However, the legislation, while endorsed by both conservative and progressive interest groups, could present a sticky election-year vote for some Republicans who typically see themselves as law-and-order politicians.  And the issue could get very complicated should Senator Ted Cruz of Texas become the Republican presidential nominee.  Mr. Cruz voted against the plan in the Judiciary Committee and was outspoken in his criticism.  So if the Republican-led Senate moved forward, it could conceivably be pushing legislation opposed by its candidate for the White House.

It is critical to recall that just a few years ago when Democrats still controlled the Senate, then-Senate leader Harry Reid never brought the Smarter Sentencing Act up for a full Senate vote ever after the SSA passed through the Senate Judiciary Committee with bipartisan support and even though there was good reason to believe the SSA would have garnered majority support from the full Senate.  Thus, as this article spotlights, the passage of the Sentencing and Correction Reform Act through the Senate Judiciary Committee provides no certainty that even the full Senate will get a chance to vote of this reform bill.

As reported earlier, it is clear that the first few months of 2016 now constitute the next critical period for federal statutory sentencing reform.  I remain cautiously optimistic that the broader political and social forces that have so far propelled bipartisan support for reform to this point will help carry some bill through both houses of Congress in some form in 2016.  But I am not counting any sentencing reform chickens anytime before they completely hatch out of Congress and find their way to the desk of the President.

December 14, 2015 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2)

Thursday, December 10, 2015

NAAUSA sends letter opposing federal sentencing reforms on behalf of forty former federal officials

As reported in this new Washington Examiner article, "[f]orty former top federal law enforcement officials want senators to hit the breaks on bipartisan legislation that would roll back mandatory minimum sentences for drug dealing and other crimes." Here is more:

The group, which includes former New York mayor and U.S. Attorney Rudy Giuliani, former Attorney General John Ashcroft and drug control czar William Bennett, say sentencing laws enacted in the 1980s and 1990s led to the dramatic dip in crime rates that began 25 years ago, a claim disputed by many liberals and criminologists.

"Our system of justice is not broken," the former officials wrote in a Dec. 10 letter sent by the National Association of Assistant United States Attorneys to Senate leaders. "Mandatory minimums and proactive law enforcement measures have caused a dramatic reduction in crime over the past 25 years, an achievement we cannot afford to give back." The officials call for leaving the current sentencing regime alone.

"Our current sentencing structure strikes the right balance between congressional direction in the establishment of sentencing levels and the preservation of public safety," they write. The former officials express alarm about proposals to retroactively alter previously applied sentencing guidances, a step they say would cause the release of "thousands of armed career criminals."...

Some senior Republicans, including Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, support scraping some minimum sentencing laws, though Grassley backs a less sweeping bill than [Senator Rand] Paul. The GOP support has helped make sentencing reform a popular issue, widely hailed as a rare area where bipartisan cooperation is possible.

But the law enforcement officials' letter shows reports of an emerging bipartisan consensus are exaggerated. The letter's signatories include officials who helped enact the tough sentencing laws now under fire. Michele Leonhart, who headed the Drug Enforcement Agency under Obama, is a notable Democratic appointee who broke with her former boss by signing on.

Sens. Jeff Sessions, R-Ala., and Marco Rubio, R-Fla., another a presidential hopeful, are among conservatives gearing up to oppose to sentencing reform, raising the chance the issue could divide Republicans.

I cannot yet find a copy of this NAAUSA letter on-line, but I will try to post it when I can get access to a copy.

UPDATE:  A helpful colleague sent me a copy of the letter for posting here:  Download Former_Official_Ltr_1210-2015-FINAL (1)

December 10, 2015 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Thursday, December 03, 2015

"The government is abusing mandatory minimums: How law enforcement is ruining a generation of Americans"

The title of this post is the headline of this lengthy Salon article authored by Daniel Denvir.  Here are excerpts: 

The Obama administration has called for the criminal justice system to be reformed and for the population of our enormous prison system to be reduced, encouraging reform efforts in Congress and pledging to speed up a moribund clemency process so that people serving unjustly harsh sentences can be freed.  The Department of Justice has taken a lead role, forcing local police departments to clean house and, under former Attorney General Eric Holder, pledging to restrict federal prosecutors’ use of harsh mandatory minimums....

There is growing concern, however, that federal prosecutors in the 94 U.S. Attorneys’ Offices nationwide are implementing Holder’s directives unevenly — or even resisting implementation entirely.  David Patton and Jon Sands, co-chairs of the Federal Defender Legislative Committee, wrote in a recent letter to House Judiciary Committee leadership that “there is widespread disregard of DOJ policy among line federal prosecutors about when to trigger those severe enhancements.  And the enhancements are regularly used for no other reason than to force people to waive their trial rights.”

 851 enhancements double five- and ten-year mandatory minimum drug sentence for offenders with one prior “felony” drug conviction, and impose a life without parole sentence for offenders with two drug priors facing a ten-year sentence.  What counts as a so-called felony, however, is remarkably broad [and] it can include state convictions so minor that they did not result in jail time. It can even include state misdemeanors...

Steve Cook, the president of the National Association of Assistant U.S. Attorneys ... is leading a campaign against sentencing reform legislation in Congress, and he disagrees that prosecutors use 851s to coerce cooperation. “One of the criticisms I hear frequently from commentators is prosecutors want these mandatory minimums and 851s so they can strong arm guilty pleas. Well, that isn’t the case,” Cook said. “851s, those were designed to put recidivists in prison for longer.”

There is evidence, however, to suggest that that is often precisely how they are used. Judge Gleeson detailed one such instance in a 2013 opinion protesting his own sentencing of Lulzim Kupa, and the prosecutorial abuse of mandatory minimums more generally. Based on more than five kilograms of cocaine alone, Kupa faced a 10-year mandatory minimum sentence. But Kupa had two prior marijuana trafficking convictions.  If prosecutors so decided, they would trigger life without parole upon conviction.

On March 5, 2013, prosecutors offered Kupa a plea deal.  The government would withdraw the 10-year mandatory minimum and instead recommend a sentence of between 110-137 months.  With good time credits, Kupa could serve seven years and ten months, Gleeson wrote.  But Kupa had just one day to think the agreement over, and he didn’t accept it.  And so prosecutors twisted the screws tighter, filing the 851 information detailing his two prior marijuana convictions. Unless prosecutors withdrew the notice, he would be automatically sentenced to life without parole upon conviction. “Just like that, a defendant for whom the government, only ten days earlier, was willing to recommend an effective sentence of less than eight years was looking at life in prison without the possibility of parole,” wrote Gleeson.

December 3, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Federal statutory sentencing reform not going to happen until 2016 ... if at all

This TPM DC report, headlined "Criminal Justice Reform Is Quickly Running Out Of Time," provides a Capitol Hill update that confirms what I had heard from another source: the full Congress is unlikely this year to get to the criminal justice reform bills that have made it through the House and Senate Judiciary committees. And, as the TPC article goes on to explain, the enduring GOP uncertainty on this front combine with a Prez campaign to perhaps diminish the prospects that any reform gets done anytime soon:

It was supposed to be the rare bipartisan bright spot in the Senate, but a crowded legislative calendar and the looming election year are endangering the last best hope for criminal justice reform while President Obama is still in office. With roughly three weeks left until the holidays, the Senate is prioritizing passing a tax extenders bill, a reconciliation package to defund Obamacare and Planned Parenthood, a transportation bill, and legislation to fund the government. That means time has run out for criminal justice reform in this calendar year.

"No chance it can be done between now and Christmas," Judiciary Chairman Chuck Grassley (R-IA) said Monday evening as he darted off the Senate floor clutching his list of the Republican senators he still intended to convince to sign onto his bill, his handwritten notes scrawled underneath each of their names.

Advocates and outside observers have long anticipated that the best chance for passage of criminal justice reform would be before the practical realities of electoral politics intruded in 2016. With the remainder of the year taken up by other matters, reformers will have to wait until the Senate gavels back in in the new year, in the midst of presidential primary season.

The prospects of pushing forward with the Senate bill just as the Republican presidential primary in particular is in full swing -- with the expected tough-on-crime appeals to the conservative base -- is daunting. Primary season is hardly the time for the Republicans back in Washington to be giving up on the well-honed GOP attack lines on crime and pushing forward a progressive new position on incarceration....

Grassley and supporters are now running short on time to get their bill on the floor especially if Republican frontrunner Donald Trump stays on top. Trump's attempts to tie illegal immigration and criminality have prompted fellow Republican presidential candidates to follow suite. In a race to out-flank one another, the GOP contenders have backed away from the new wave of conservative thinking on criminal justice reform and reverted to echoing the talking points that were cornerstones of the party in the 1980s and 1990s. Sen. Ted Cruz (R-TX) voted against the criminal justice reform bill in committee in October even as he once billed himself as a pro-reform Republican....

While momentum had been building for the Senate's criminal justice reform bill, there are still deep divisions in the Republican Party to contend with. The tug of war is between traditional tough-on-crime Republicans who believe reductions in sentences would lead to a spike in crime and a new generation of conservatives who see an economic argument for reducing mandatory minimums and slashing the costs associated with incarceration.

Grassley and other sponsors like Sen. Mike Lee (R-UT) are working to convince senators like Cory Gardner (R-CO), Shelley Moore-Capito (R-WV) and Steve Daines (R-MT) to sign on, but there are some outspoken opponents who may prove to be immovable. “I think the bill needs more work. I think it needs to be connected with the reality of criminal justice and crime in America," said Jeff Sessions (R-AL) "I would not favor bringing it up and just zipping it through. A number of members in our conference, I think share those concerns.” Freshman Sen. Tom Cotton (R-AR) replied "no comment" when TPM asked him about his position. Former Judiciary Committee Chairman Orrin Hatch (R-UT) said he was concerned the bill would "let out a lot of people who don’t deserve to be let out [of prison.]"

While Democratic sponsors of the bill are publicly optimistic that the legislation can get a vote on the floor even in an election year, Sen. Sheldon Whitehouse (D-RI) admits the lack of GOP unity does put the legislation in some jeopardy. Republican leadership will want to ensure they have buy in from most of their conference if they are going to risk bringing the bill up in an election year and giving President Barack Obama a domestic legislative victory. “I think this is an issue that needs to be wrangled out on the Republican side so the Republicans on the bill need their own leadership to get it some votes," Whitehouse says. "It's not unanimous so the Jeff Sessions and people like that would be out of the floor pushing back the same way they did on the committee."

Sen. Thom Tillis (R-NC) says he's familiar with the process of selling criminal justice reform to a skeptical audience. Tillis was speaker of the North Carolina House when the legislature passed the Justice Reinvestment Act, which made back-end reforms to reduce recidivism. "I know that a lot of people get concerned with it," Tillis said. “It’s not really a soft on crime bill. It is the typical arguments that get used for these sorts of things, but I think the more that we educate people, the broader base of support we will get for it."

Tillis recognizes, however, that the problem is that on the campaign trail, candidates don't have time to explain complicated or new policy proposals. “If candidates on either side of the aisle exploits it for what it is not, yeah it could slow things down," Tillis said." You only get to operate in 15 and 30 second soundbites, and you cannot explain the merits of this bill in that time frame so yeah going on into the early primaries, it could be difficult and they have to stake themselves out.”

I am not yet giving up all hope that Prez Obama could get to sign a federal sentencing reform bill before he leaves office. But, as I have long been saying, an array of political, policy and practical challenges lead me always to be mostly pessimistic about the prospects of significant congressional action on this front.

December 3, 2015 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Thursday, November 26, 2015

So thankful for federal judges encouraging prosecutors to reconsider extreme sentence... but...

I wish that such reconsideration of extreme sentences were more the norm than the exception in our modern era of mass incarceration.  The notable new judicial trend for which I am thankful was discussed earlier this week in this Wall Street Journal article headlined "Persuasive Judges Win Reduced Sentences for Some Convicts: Federal prosecutors agree to do-overs in a handful of cases, another sign of shifting attitudes about punishment."  Here are excerpts:

Francois Holloway became a free man this year three decades earlier than planned, thanks to a well-placed ally. U.S. District Judge John Gleeson in Brooklyn, N.Y., who put Mr. Holloway away in 1996 for participating in armed carjackings, had lobbied prosecutors for years to reduce Mr. Holloway’s 57-year sentence.

Federal trial judges have little leeway in sentencing when prosecutors trigger mandatory-minimum laws that set floors for punishment, and they have few means of revisiting closed cases, unless new evidence comes to light or a major legal error was committed. But they can be persuasive.  Federal prosecutors have agreed in recent years to sentence reductions in a handful of cases, most after public pressure from judges.

Such do-overs are another sign of shifting attitudes about punishment and growing bipartisan support for criminal justice policies that emphasize rehabilitation.  The practice does have its detractors, who say such relief should come from the White House in the form of commutations and pardons, not from the courthouse.

So far, the cases have tended to involve defendants who rejected plea deals, lost at trial and received prison terms several times larger than they would have if they had they pleaded guilty, sometimes called a “trial penalty.” Mr. Holloway balked at a deal that would have sent him to prison for about 11 years. He ended up receiving a mandatory minimum of 45 years because one of his co-assailants brandished a gun during the three carjackings. He earned the balance for stealing the vehicles, per federal sentencing guidelines that were binding on Judge Gleeson at the time....

After Mr. Holloway lost his appeal, he turned to a federal law frequently used by federal prisoners to challenge their sentences as excessive or to show that their lawyers were ineffective to the point of depriving them of their rights. At the urging of Judge Gleeson, the U.S. attorney’s office in Brooklyn last year withdrew its opposition to Mr. Holloway’s petition, citing his “extraordinary” record while in prison, as well as the responses of Mr. Holloway’s victims, who supported his early release. Attorney General Loretta Lynch headed the U.S. attorney’s office at the time.  Judge Gleeson vacated two of Mr. Holloway’s convictions and resentenced him to time served. “Prosecutors are almost never criticized for being aggressive,” he wrote in a July 2014 ruling lauding Ms. Lynch’s move. “Doing justice can be much harder.”

U.S. attorneys have accepted reduced punishments “where prosecutors, the court and victims have agreed that a sentence is unjust,” but such cases are rare, said Melanie Newman, a spokeswoman for Ms. Lynch. “The government nearly always seeks to preserve the finality of sentences where there is no legal flaw,” Ms. Newman said.

Harlan Protass, a partner at Clayman & Rosenberg LLP who represented Mr. Holloway, said the case has become a model for taking a second look at sentences.  Mr. Protass and Sam Sheldon, a partner at Quinn Emanuel Urquhart & Sullivan LLP in Washington, D.C., hope to establish a law-school clinic with the mission of persuading the government to allow new sentence hearings and reduced prison terms for certain offenders....

In another New York case, Randy Washington, a crack-cocaine dealer from the Bronx convicted of armed robbery, found a friend in his sentencing judge, who last year admonished prosecutors to consider whether the 52-year mandatory-minimum prison sentence Mr. Washington faced was “worthy of the public’s trust and confidence.” His punishment later was cut in half.

Prosecutors in Oklahoma agreed this year to allow an Army National Guard veteran sentenced to life for cocaine smuggling to leave prison after serving nearly three decades.  In Atlanta, the government shortened from life to 25 years the sentence of a man convicted of cocaine distribution.  Meanwhile, prosecutors in Montana dismissed several gun and drug counts against a medical-marijuana grower, lopping off 80 years of an 85-year mandatory sentence....

Some federal prosecutors have declined requests by federal judges for shorter sentences.  In Philadelphia, U.S. District Judge Jan DuBois recently implored prosecutors for a penalty that “better serves the interests of justice” in the case of Tyrone Trader, who was convicted for his role as a street-level dealer in a cocaine-trafficking conspiracy...  Mr. Trader received a mandatory life sentence under federal law, after the Justice Department filed a notice with the court showing Mr. Trader had prior felony drug convictions.  The other street-level dealers who took pleas have been released from prison, Judge DuBois noted, adding that the average federal sentence for murder was less than 23 years in fiscal 2014.  “It is difficult to see how a sentence of life imprisonment in Trader’s case is just,” Judge DuBois wrote in an August ruling.

U.S. Attorney Zane David Memeger said in a statement that the government carefully considers each case before making charging decisions and that there was “no basis” for reducing Mr. Trader’s sentence.

November 26, 2015 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

So thankful for federal sentencing reform moving ahead in Congress... but...

this recent article from the New York Times highlights why I will not celebrate the reform movement's accomplishments until a bill is being signed by the President.  The article, headlined "Rare White House Accord With Koch Brothers on Sentencing Frays," details what has become more controversial elements of bipartisan criminal justice reform efforts.  Here are excerpts:

For more than a year, a rare coalition of liberal groups and libertarian­minded conservatives has joined the Obama administration in pushing for the most significant liberalization of America’s criminal justice laws since the beginning of the drug war.  That effort has had perhaps no ally more important than Koch Industries, the conglomerate owned by a pair of brothers who are well­known conservative billionaires.

Now, as Congress works to turn those goals into legislation, that joint effort is facing its most significant test — over a House bill that Koch Industries says would make the criminal justice system fairer, but that the Justice Department says would make it significantly harder to prosecute corporate polluters, producers of tainted food and other white­collar criminals.

The tension among the unlikely allies emerged over the last week as the House Judiciary Committee, with bipartisan support, approved a package of bills intended to simplify the criminal code and reduce unnecessarily severe sentences. One of those bills — which has been supported by Koch Industries, libertarians and business groups — would make wholesale changes to certain federal criminal laws, requiring prosecutors to prove that suspects “knew, or had reason to believe, the conduct was unlawful,” and did not simply unknowingly violate the law.

Many laws already carry such a requirement — known as “mens rea” — but Congress left it out of many others, and libertarian groups say that has made it too easy to unknowingly violate obscure laws.  Some environmentalists argue, however, that the real motive of Charles Koch, the philanthropist and the company chairman, in supporting the legislation is to block federal regulators from pursuing potential criminal actions against his family’s network of industrial and energy companies, a charge the company denies.

If the bill passes, the result will be clear, said Melanie Newman, the Justice Department spokeswoman. “Countless defendants who caused harm would escape criminal liability by arguing that they did not know their conduct was illegal” she said.

The debate over the bill, sponsored by Representative Jim Sensenbrenner, Republican of Wisconsin, has become particularly complicated for House Democrats, who have been warned that its passage would be essential for obtaining support from Republicans for a larger package of criminal justice bills.  Many liberal Democrats see this session of Congress as a rare chance to address what they see as significant unfairness in the criminal justice system.  Many of them feel that anything that jeopardizes that opportunity, like trying to block Mr. Sensenbrenner’s bill, is not worth doing.  Two liberal members of the Judiciary Committee, Representatives John Conyers Jr. of Michigan and Sheila Jackson Lee of Texas, were co­sponsors of the bill.

Mr. Conyers, in a statement on Tuesday, said he supported the bill, which the Judiciary Committee approved by voice vote last week, because outside parties had raised “a number of concerns about inadequate, and sometimes completely absent, intent requirements for federal criminal offenses.”  But he said he was committed to finding a way to address the Justice Department’s concern....

“There are some groups on the left that mistrust the people who have put this proposal forward,” said John G. Malcolm, who served in the Justice Department’s criminal division during the Bush administration.  He now works at the Heritage Foundation, a conservative research center, where he has aggressively pushed for the change in the mens rea provisions.  “It is an unfair and unwarranted characterization,” he added.

Koch Industries and conservative groups have some important liberal allies on the matter, including the National Association of Criminal Defense Lawyers. Norman L. Reimer, the organization’s executive director, said it was not surprising the Justice Department opposed the legislation. “D.O.J. is always up in arms over anything that looks like they’d have to do their jobs,” he said.  If the Justice Department’s job was harder in some cases, he said, that would be a good thing. For example, he cited a case in which prosecutors charged a fisherman with violating federal accounting laws by tossing undersized fish overboard. (Koch Industries made a major donation to the defense lawyers’ group last year.)

November 26, 2015 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Monday, November 23, 2015

US District Judge Bennett finds legal limit to giving retroactive effect to new lower federal drug sentencing guidelines

Regular readers know that US District Judge Mark Bennett regularly produces thoughtful and thorough opinions on an array of cutting-edge federal sentencing issues.  The latest Judge Bennett opus arrived today via US  v. Feauto, No. CR 12-3046-MWB (D. Iowa Nov. 23, 2015) (available for download below).  As this start to the Feauto opinion reveals (with lengthy footnotes left out and breaks added), Judge Bennett's latest work likely means a not-so-happy Thanksgiving week for at least on federal defendant:

Before me for consideration is defendant Randy Feauto’s eligibility for a sentence reduction under 18 U.S.C. § 3582(c)(2) in light of Amendment 782, the “All Drugs Minus Two Amendment,” to the United States Sentencing Guidelines.  The parties and the Federal Defender for the Northern and Southern Districts of Iowa, as invited amicus curie, argue that a defendant subject to a mandatory minimum sentence who previously received a “substantial assistance” reduction below that mandatory minimum can be resentenced pursuant to Amendment 782 without regard to the mandatory minimum.  That position was originally music to my ears, because I have consistently — and vehemently — disagreed with the harshness of most mandatory minimum sentences.  In fact, in most of the over 1,000 congressionally-mandated mandatory minimum sentences that I have imposed over the past twenty-two years, I have stated on the record that they were unjust and too harsh.  I would often inform or remind defendants and their families and supporters in the courtroom that reform of mandatory minimum sentencing must come from the legislative branch of our federal government — Congress.

So it is with significant irony, but consistent with my view that only Congress has the authority to waive mandatory minimum sentences (with the exception of substantial assistance motions, pursuant to § 3553(e) and FED. R. CRIM. P. 35(b), and “safety valve” eligibility, pursuant to § 3553(f)), that I disagree with the parties’ argument that the Sentencing Commission has the authority to use Amendment 782, or any other amendment to the Sentencing Guidelines, to “nullify” a mandatory minimum sentence established by Congress.  For the reasons set forth below, my understanding is that only Congress itself, not the Sentencing Commission or the Judicial Branch, has that power.  Consequently, the proper net effect of Amendment 782, applied either retroactively or prospectively, is that it can only reduce the sentence of a defendant who originally received a reduction for substantial assistance if he had no mandatory minimum or both his original guideline sentence and his amended guideline sentence are above his mandatory minimum.  Feauto is not such a defendant.

I fully recognize that, like the vast majority of mandatory minimum sentences themselves, this construction leads to a harsh result, but fidelity to the rule of law and principles of non-delegation and separation of powers trumps any personal views on the harshness of federal sentencing.  As discussed below, the construction urged by the parties and amicus creates an Alice In Wonderland like scenario in which the retroactive application of Amendment 782 opens a rabbit hole that Feauto, instead of Alice, falls through and receives a lower sentence in Wonderland than if he were originally sentenced today for his crime with the application of post-Amendment 782.  Surely, this Mad Tea Party scenario creates the very kind of unwarranted disparity the guidelines were intended to avoid.

Download Feauto.Final

November 23, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

NY Times editorial: "Cut Sentences for Low­-Level Drug Crimes"

This New York Times editorial provides a glimpse into the latest state (and notable criticisms) of federal statutory sentencing reform making slow-but-steady progress in Congress. Here is how it starts and ends:

Now that Congress is within sight of passing the most significant federal sentencing reforms in a generation, it’s worth taking a closer look at where the legislation falls short.

The main driver of the federal prison population is, by far, the dramatic increase in the time people spend behind bars — specifically, those convicted of drug offenses, who account for nearly half of the nation’s 199,000 federal inmates. From 1988 to 2012, the average time served for drug crimes more than doubled in length, according to a new report by the Pew Charitable Trusts.  That increase in the length of drug sentences comes at a great expense: an estimated $1.5 billion each year, based on how much it costs to keep a federal inmate behind bars.

The new sentencing­-reform bills now moving through the Senate and House would help reduce some of the longest mandatory­-minimum sentences, including ending the use of life without parole for drug crimes, and would give judges more power to impose a shorter sentence when the facts of a case warrant it.

But these fixes do not reach to the heart of the problem, which is that the vast majority of federal drug offenders serving outsize sentences are in for low-level, non-violent crimes, and have no serious history of violence. More than half of the current drug­-offender population has no violent history at all, according to a new analysis by the Urban Institute and the Charles Colson Task Force on Federal Corrections.  Less than 14 percent were sentenced for using or threatening to use violence, or directing its use.  And only 14 percent were sentenced for having a high-­level or leadership role in a drug operation, the study found....

A critical fix Congress could make right now would be to change the law so that a person’s sentence is determined by his role in a drug operation, and not by the entire amount of drugs found in that operation, which is a poor measure of culpability.

One version of the sentencing reform legislation, introduced in the House by Jim Sensenbrenner, Republican of Wisconsin, and Robert Scott, Democrat of Virginia, would have addressed this issue squarely by applying many mandatory minimum sentences only to the leaders of a drug organization. But that smart idea was heavily watered down in the bills passed by the Senate and House Judiciary Committees in recent days.  Congress should resurrect this sensible provision, which would go a long way toward bringing some basic fairness and rationality back into the nation’s horribly skewed drug laws.

Some recent related posts:

November 23, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Wednesday, November 18, 2015

House Judiciary Committee advances its Sentencing Reform Act of 2015 for full House consideration

As reported in this article from The Hill, today the "House Judiciary Committee passed a criminal justice reform bill ... that would reduce certain mandatory minimum prison sentences to address overcrowding in the federal prison population."  Here is more on how this came to pass:

In a voice vote, the committee moved Chairman Bob Goodlatte’s (R-Va.) bill — the Sentencing Reform Act of 2015 — to the full House for consideration.

The bill reduces mandatory minimum sentences for a second serious drug offense from 20 to 15 years and reduces mandatory sentences for a third drug trafficking offense or violent felony from life in prison to 25 years.

While the bill allows the reduced sentencing reforms to apply retroactively to offenders already serving time, Goodlatte said it does not do so blindly. “The bill excludes from retroactivity any offender who has a prior conviction for a serious violent felony, for which the offender served 13 months or more in prison,” he said....

The committee did approve an amendment offered by Rep. Jim Sensenbrenner (R-Wis.) to require the Department of Justice and the sentencing commission to update its 2011 mandatory minimum sentencing report. The amendment also expresses that it is the sense of Congress that mental health is a critical component of criminal justice reform. In offering his support for the amendment, which was authored by Sensenbrenner and Reps. Sheila Jackson Lee (D-Texas), Doug Collins (R-Ga.) and Cedric Richmond (D-La.), Conyers said it’s important for Congress to recognize the need to better integrate mental health treatment as part of its reform efforts.

Rep. Ken Buck (R-Colo.) offered an amendment to exempt heroin users from the legislation, but it was thrown out by the committee.

This legislative development gets us one step closer to having significant federal sentencing reform on the desk of Prez Obama before the end of this year. But I am disinclined to get too excited unless and until I hear that a full House vote and a full Senate vote are scheduled.

November 18, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Tuesday, November 10, 2015

Urging AG Lynch to ensure DOJ policies on § 851 enhancements are followed consistently

I was pleased over this weekend to be part of an effort spearheaded by Prof Kate Stith to write to Attorney General Loretta Lynch to express concerns about federal prosecutors' charging practices in drug cases.  The short letter sent yesterday to AG Lynch on this matter, which can be downloaded below, gets started and ends as follows:

We write to urge you to issue renewed guidance to all U.S. Attorneys to reiterate and enhance compliance with former Attorney General Eric Holder’s September 2014 Memorandum (“Holder Memo”) instructing U.S. Attorneys not to leverage 21 U.S.C. § 851 enhancements to induce defendants to plead guilty.  Recent statements by Steven H. Cook, head of the National Association of Assistant United States Attorneys (NAAUSA), as well as field research being conducted by students at Yale Law School, suggest that at least some federal prosecutors are not consistently complying with this policy.  This creates prosecutor­-driven disparities that are plainly unwarranted....

[T]here is mounting evidence that at least some U.S. Attorneys still consider it appropriate to routinely threaten to file § 851 enhancements if defendants exercise their right to go to trial.  Last week, the Washington Post reported that Steven Cook of NAAUSA “said the rates of cooperation have not changed in part because mandatory sentences are still in play as leverage in negotiations.  The Holder memo, he said, has been interpreted differently by individual prosecutors, sometimes in the same office.  Defense attorneys ‘understand that this tool is still in our pocket.’”

Though the study is still ongoing, preliminary inquiries and data analysis by students at Yale Law School likewise reveal inconsistent application of the Holder Memos.  Moreover, prosecutors in many districts continue to wield the explicit or implicit threat of § 851 enhancements to induce defendants to plead guilty.  In numerous districts across the country, it is common knowledge that a prosecutor will almost certainly file an enhancement if a defendant elects to go to trial.  Such practices contravene the spirit and letter of the Holder Memos.

We urge you to issue renewed guidance to all U.S. Attorneys in order to ensure compliance with and consistent application of the August 2013 and September 2014 Holder Memos. Additionally, in order to foster and facilitate consistent application of federal sentencing laws nationwide, we recommend that you (1) include these policies in the U.S. Attorneys’ Manual, and (2) require U.S. Attorneys to report when they file § 851 enhancements, and their reasons for doing so pursuant to the Holder Memos.

Download Letter to Hon. Loretta E. Lynch from Professor Kate Stith_Douglas Berman_and Mark Osler

November 10, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Will new House Speaker Paul Ryan significantly help getting federal sentencing reform enacted?

The inside-the-Beltway question in the title of this post is prompted by this inside-the-Beltway report from The Hill headlined "Paul Ryan seen as boost to criminal justice reform push." Here are excerpts:

Proponents of criminal justice reform view new Speaker Paul Ryan as an ally, and see his ascension as a boost to the bipartisan push to overhaul decades-old sentencing and drug laws. Lawmakers and advocates pushing reform legislation base their optimism on Ryan’s past proposals, the signals he has sent about the way he plans to run the House — and even the Wisconsin Republican’s age.

Members of both the House and the Senate told The Hill they believe Ryan’s election last week will help smooth legislation now pending before both chambers. “It helps,” said Sen. Lindsey Graham (R-S.C.) “I think he’s sensitive to the issue and would be willing to look at sensible reform.”

Ryan included criminal justice and sentencing reforms in a sweeping anti-poverty plan he penned in 2014, when he served as chairman of the House Budget Committee. The proposal called for more flexibility within mandatory minimum guidelines judges use when sentencing non-violent drug offenders and for federal assistance in helping inmates re-enter society.

To the extent he decides to focus on the issue, Ryan could play an important role in bringing the issue to the floor this session. “I know Paul has been a supporter of the concept over the years and so one would reasonably conclude it might be a little easier,” said Rep. Steve Chabot (R-Ohio), who himself has concerns about moving too aggressively on a criminal justice overhaul.

Advocates, meanwhile, are bullish on the prospect, saying Ryan’s history and experience all bode well for reform efforts. “I think Paul Ryan sees it as something that’s part of a social fabric fix not just criminal justice reform,” said Kevin Ring, director of strategic initiatives at Families Against Mandatory Minimums (FAMM), a group that’s fighting for sentencing reforms.

Danyelle Solomon, policy counsel for the Brennan Center for Justice at New York University Law School, said Ryan is uniquely positioned to become a leader on proposals that have failed to gain traction in recent years. “With his time on the Budget and Ways and Means committees, he is well aware of the cost burden the system has on the federal budget,” she said. “Speaker Ryan has made positive comments about the need to address the criminal justice system and we’re excited to see movement.”...

Two reform bills have been offered in the House: the SAFE Justice Reinvestment Act, introduced by Rep. Jim Sensenbrenner (R-Wisc.) and Rep. Bobby Scott (D-Va.), and the Sentencing Reform Act of 2015, authored by House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Rep. John Conyers (D-Mich.). The latter legislation has also been introduces in the Senate and both bills have bipartisan support....

Though Scott noted that Ryan has been an advocate for relying heavily on research in drafting social policies — something he says his bill does — he admits Goodlatte’s legislation has a better chance of getting a vote in the House. “I think it’s fair to say the bill number that reaches the floor with be Goodlatte’s bill,” he said. “The question is what gets added to it. There are a lot of provisions that would significantly improve the Goodlatte bill.”

In a statement to The Hill, Goodlatte said the Judiciary Committee is taking a step-by-step approach. "There is a growing consensus across the political spectrum that our criminal justice system is in need of reform and I am hopeful that reforms can be passed and enacted this Congress,” he said.

Reformers also draw hope from Ryan’s age. At 45, he’s two decades younger than the man he succeeded, former Speaker John Boehner (R-Ohio). “Younger members have a better sense of this issue and there is less of this binary ‘you tough on crime; me soft on crime,’” Ring said. “The younger guys aren’t burdened by the older fights, so they are freer to look at it in different ways.”

A few prior related posts about Paul Ryan and federal sentencing reform:

November 10, 2015 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Monday, November 09, 2015

Former Virginia AG explains why he finds conservative opposition to sentencing reform "so baffling"

Ken Cuccinelli, the former attorney general for Virginia, has authored this notable FoxNews commentary asserting that true conservatives should be true supporters of modern sentencing reform efforts. The piece, headlined "Criminal justice reform: Conservative states have a record of success. So why ignore it?", merits a full read. Here is how it gets started:

With Congress currently considering several different approaches to criminal justice reform, interested parties have long noted that the current situation at the federal level is untenable, featuring stubbornly high recidivism rates, a ballooning prison population, and a Bureau of Prisons that constitutes an ever-growing proportion of the Justice Department’s budget.

In short, we aren’t getting the sort of return on investment — both in terms of cost, but most importantly, public safety — that we’ve come to demand of other areas of government. In such situations, conservatives must take the lead when government has grown inefficient, which is why some recent opposition to reform from the right is so baffling.

Commentators have variously suggested that this effort is “bipartisanship at its worst,” or that our crime rate has declined in recent years because “we have taken crime more seriously” by keeping “serious criminals in jail, not letting them out” despite an entire body of scholarship to the contrary.

Unfortunately, such commentary is long on histrionics — with suggestions that essentially equate re-evaluating mandatory sentences to allow for more tailored, individualized punishments as tantamount to Congress throwing open prison doors indiscriminately — and short on facts and experience which, hitherto, conservatives have prized.

America’s crime rate has indeed fallen substantially in recent decades, but this is due in large part to a paradigm shift in what it means to be “tough on crime.” We can agree that keeping serious criminals in prison is an effective means of preserving public safety, but we must also recognize that the axiom of “putting people in jail and throwing away the key” does not apply to all offenders universally, and can actually be counterproductive.

Incarcerating non-violent offenders in the same population as more dangerous criminals has the effect of inculcating the former into a culture of criminality common among the latter, making them more of a risk to public safety upon release than when they originally went in.

“Tough on crime” policies, particularly mandatory sentences, tend to set such circumstances in stone, and vitiates the possibility of seeking out alternative, evidence-based programs that can divert amenable offenders into treatment. Such programs are more cost-effective, and most importantly, have been proven to reduce the likelihood of recidivism.

November 9, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Thursday, November 05, 2015

"Prosecutors are addicted to the War on Drugs: Inside law enforcement’s rabid defense of mandatory minimums"

The title of this post is the headline of this lengthy Salon article authored by Daniel Denvir. Here are excerpts:

Federal prosecutors are fighting a rearguard action to defeat criminal justice reform legislation in Congress, warning that modestly dialing back harsh mandatory minimum sentences for nonviolent drug offenders would hinder their campaign against drugs amidst a heroin crisis.

“Slashing federal mandatory minimum sentences will undermine the ability of law enforcement officials to dismantle drug trafficking organizations,” a National Association of Assistant United States Attorneys white paper on “the dangerous myths of drug sentencing ‘reform'” warns.  Reduced sentences “threaten the prosecution of many of the most dangerous and high level criminals involved in drug trafficking by undermining the cooperation incentive that the current sentencing structure creates.”

Because of harsh mandatory minimums in federal and state law, many nonviolent drug dealers have been sentenced to spend much of their life behind bars — including sentences of life without parole — for crimes as minor as delivering LSD to fellow Deadheads. Defending the justice or proportionality of such sentences is a rather difficult task. So NAAUSA isn’t focusing on that.  Instead, the group, which represents many federal prosecutors, is warning that they need the threat of harsh sentences to scare low level offenders into selling out their superiors: the big-time kingpins who have blood on their hands.

“The leverage, the hammer we have comes in those penalties,” federal prosecutor and NAAUSA president Steven H. Cook told the Washington Post in an article highlighting the group’s case against reform. “It is the one and only tool we have on the other side.”...

Cook concedes that prosecutors need the threat of draconian sentencing to tip the scales of justice in their favor, scaring defendants into pleading guilty and snitching.  In 2013, more than 97 percent of all federal cases that weren’t dismissed (which was just 8 percent) ended in guilty pleas.  The practice effectively denies people their constitutionally-enshrined right to trial, deprives judges of their role, leads to the conviction of the innocent, and disproportionately punishes people who simply lack information to trade.

“I can understand prosecutors who want to have their jobs made easier by maintaining mandatory minimums in their current form,” says Michael Collins, deputy director of the Drug Policy Alliance’s Office of National Affairs.  “At the end of the day, the criminal justice system does not exist to make the workload of certain individuals easier.”

That federal prosecutors are defending mandatory minimums in such instrumental terms might be a concession that they can no longer make a compelling argument that such harsh sentences fit the crimes for which they are imposed....

The federal drug war grinds on despite the Obama Administration’s calls for moderation. Most notably, Cook makes the startling suggestion, according to the Post, that then-Attorney General Eric Holder’s 2013 memo calling for U.S. Attorneys to limit the use of mandatory minimums is being ignored or resisted by some prosecutors....

Cook emails that “one of the fundamental concepts of any criminal justice system is that it have a deterrent effect.  Long prison sentences serve to deter people.  Trafficking in heroin is a highly profitable business and to offset the attractiveness we have to make the cost of engaging in that activity high.”

But there is no evidence that harsh prosecutions actually do anything to keep heroin off the streets and out of users noses and arms.  To the contrary, the evidence shows that the drug war has entirely failed to limit heroin supply if we look at two standard measures: price and purity.  According to a 2012 Global Commission on Drug Policy report, “since the early 1980s, the price of heroin in the US has decreased by approximately 80 percent…and heroin purity has increased by more than 900 percent.”

Indeed, the irony is that many of the most dangerous things about heroin use are created not by the drug — which is no doubt plenty dangerous and addictive — but by its prohibition, which make it difficult to measure dosage and detect dangerous adulterants like fentanyl.

The current push for reform is modest and will by no means even come close to ending mass incarceration.  But it is nonetheless historic and significant for those whose lives will be somewhat less ruined if it is passed and signed into law.  The legislation has received bipartisan support, extending beyond Congress to odd-bedfellow advocates like the ACLU, Koch Industries and a new coalition called Law Enforcement Leaders to Reduce Crime and Incarceration.

Doug Jones, a member of the law enforcement reform group and the former US Attorney for the Northern District of Alabama, says that he understands that prosecutors are concerned for their communities and also, he says, with managing their heavy caseloads. But he says that pro-reform law enforcement officials “are looking at a broader perspective” that takes account of the toll of having some of the highest incarceration rates on earth.  “More incarceration is not necessarily the safest way to do things.”

To make his case, Cook is trying to turn the political clock back to 1990, warning that “reforms” may already be causing “homicides and other violent crimes” to be “spiraling upward in cities across the country.”  This is similar to the argument in favor of a so-called “Ferguson effect,” the idea that increased scrutiny of police has deterred them from doing their job and thus caused more crime.  This idea persists despite statistics showing that there is no demonstrable nationwide violent crime spike.  In reality, violent crime has continued its long decline....

Cook states that harsh mandatory minimums are “the one and only tool we have.” But prosecutors, as evidenced by the fact that so few cases ever make it to trial, wield incredible power in the courtroom and have too often supplanted judges as the real arbiter of justice. In a just society governed by the rule of law, the only tool that prosecutors are supposed to have in court is evidence that proves beyond a reasonable doubt that a defendant committed a crime.  And when they prove it, the punishment should be proportionate.

As American Bar Association standards state, “The duty of the prosecutor is to seek justice, not merely to convict.”  For many federal prosecutors, however, the maximum amount of incarceration is still the favored solution.

November 5, 2015 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Monday, November 02, 2015

House Judiciary Chair Goodlate makes case for sentencing reform by attacking sentencing reform

The somewhat curious title of this post is prompted by this somewhat curious new National Review commentary authored by Representative Bob Goodlatte, chair of the House Judiciary Committee. The piece is headlined "Reduce Prison Sentences, but Not for Violent Offenders: The release of dangerous criminals shows why Congress needs to act on criminal-justice reform." Here are excerpts from the piece (with a few patently false phrases emphasized):

Starting this month, thousands of federal inmates are set to be released early from federal prison, including serious violent felons and criminal aliens.  This action is not the result of legislation passed by the people’s elected representatives in Congress.  Rather, it is a result of a decision made by unelected officials appointed to the United States Sentencing Commission.

In early 2014, the Sentencing Commission adopted an amendment to reduce the sentences for certain drug-trafficking and distribution offenses, including trafficking offenses that involve drug quantities substantial enough to trigger mandatory minimum sentences.  The Sentencing Commission made these reductions retroactive, applying them to tens of thousands of inmates in the Bureau of Prisons’ custody who are serving sentences for drug offenses.  Since then, thousands of federal inmates have filed motions with their courts of jurisdiction for sentence reductions and have been granted approval for early release.

The problem with the Sentencing Commission’s changes to federal drug-sentencing requirements is that they are applied without regard to the inmate’s criminal history and public safety.  Consequently, criminals set to be released into our communities as a result of the Sentencing Commission’s amendment include inmates with violent criminal histories, who have committed crimes involving assault, firearms, sodomy, and even murder.

There is growing consensus in Congress that certain federal drug sentences, such as mandatory life imprisonment for a third drug-trafficking offense, are unnecessarily harsh and contribute to prison overcrowding and a ballooning federal prison budget.  However, the Sentencing Commission is going about sentencing reform the wrong way.  Its new guidelines blindly apply sentencing reductions to all federal inmates without considering the impact an early release would have on the safety of our communities.

The Sentencing Commission’s unilateral changes show why it is imperative that Congress act on sentencing reform and other criminal-justice issues.  If Congress does not act, the matter is left in the hands of an entity that has demonstrated it cannot be trusted to act responsibly.  Fortunately, leaders in the House of Representatives and the Senate agree that our nation’s criminal-justice system needs improvement and are working on bipartisan legislation to do just that....

Recently, I joined several leaders of the committee in introducing our first piece of bipartisan legislation to reform federal sentencing requirements and simultaneously prevent serious violent criminals from getting out early.

That bill — the Sentencing Reform Act — makes the criminal-justice system more fair, efficient, and fiscally responsible.  It reduces certain mandatory minimums for drug offenses, including cutting the third-strike mandatory life sentence to 25 years and the second-strike mandatory sentence from 20 to 15 years. The bill also broadens the mechanism for non-violent drug offenders to be sentenced below the mandatory minimum sentence and provides judges in those cases with greater discretion in determining appropriate sentences.  These changes will help save taxpayer dollars and take an important step toward reducing crowding in our federal prisons and the amount of federal taxpayer dollars spent on incarceration each year.

Our criminal-justice system is in need of reform, but we must ensure that changes to the system do not compromise the safety of the American people.  Most important, the bill contains major limitations on the retroactive application of these reforms, to ensure that serious violent criminals serve the full time for their crimes in federal prison and do not get out of prison early.  This is in stark contrast with what the Sentencing Commission has done to federal sentencing requirements....

While the fruit of the Sentencing Commission’s reckless changes is laid bare beginning this month, the House Judiciary Committee will move forward with the Sentencing Reform Act so that sentencing reform is done responsibly. Our criminal-justice system is in need of reform, but we must ensure that changes to the system do not compromise the safety of the American people.

The phrases I have highlighted are patently false because the instructions that the US Sentencing Commission giver to judges when deciding whether to reduce a defendant's sentence based on lowered guidelines includes an express requirement that the "court shall consider the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant's term of imprisonment in determining: (I) whether such a reduction is warranted; and (II) the extent of such reduction." In other words, the USSC does not call for retroactive application of reduced guidelines without regard for public safety.  Rather, the USSC expressly calls for judges to consider, on a case by case basis, whether reducing a sentence for an inmate poses a danger to any person or the community.  

That all said, while this op-ed seems to me to be taking unfair pot shots at the US Sentencing Commission, I think it is wise to suggest that Congress can and should feel urgency to enact its own federal sentencing reform if it is concerned in any way with how the US Sentencing Commission has been trying to reduce the federal prison population.  Both the Sentencing Commission and the US Department of Justice have been telling Congress for a number of years that federal prisons are badly overcrowded and are using up too much of the federal crime control budget.  The Commission's decision to reduce drug sentences across the board and to make these changes retroactive reflect, in part, a wise recognition by the Commission that it needed to do something significant ASAP to reduce federal prison overcrowding.  Notably, though many members of Congress have now been talking seriously about federal sentencing reforms for nearly three years, no actually refoms have become law.  

November 2, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

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.


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


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 (2)

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)