Wednesday, July 09, 2014

"States Push For Prison Sentence Overhaul; Prosecutors Push Back"

The title of this post is the headline of this new NPR story highlighting who is at the forefront of efforts to thwart sentencing reforms these days.  Here are excerpts:

Some red states like Louisiana and Texas have emerged as leaders in a new movement: to divert offenders from prisons and into drug treatment, work release and other incarceration alternatives. By most counts, Louisiana has the highest incarceration rate in the country. In recent years, sentencing reformers in the capital, Baton Rouge, have loosened some mandatory minimum sentences and have made parole slightly easier for offenders to get.

But as reformers in Louisiana push for change, they're also running into stiffening resistance — especially from local prosecutors. It's all happening as the number of Americans behind bars has started to decline. There are multiple reasons for that, including crime rates that have been dropping since the 1990s, as well as the impact of the Supreme Court's 2011 requirement that tough-on-crime California reduce its prison population.

And there's another factor: a growing bipartisan consensus for sentencing reform. Local politicians are getting political cover for those efforts from conservative groups like Right on Crime. "It is a growing consensus on the right that this is the direction we want to be going," says Kevin Kane, of the libertarian-leaning Pelican Institute for Public Policy in Louisiana. "Most people will point to, 'Well, it's saving money, and that's all conservatives care about.' But I think it goes beyond that."

Kane says libertarians are interested in limiting the government's power to lock people away, while the religious right likes the idea of giving people a shot at redemption — especially when it comes to nonviolent drug offenders.

Still, not everyone is embracing these ideas. In some places, there's been considerable pushback — especially when the idea of eliminating prison time for drug offenders arises....

Liz Mangham, a lobbyist, has represented the conservative sentencing reformers in Baton Rouge. While they've made progress, she says they appeared to cross a red line this spring with a bill to step down Louisiana's stiff penalties for possession of marijuana. Under current law, possession is a felony on the second offense. A third may get you as much as 20 years in prison. Mangham recalls the scene when the bill came up for a crucial hearing.

"The Judiciary Committee room was full. The anteroom across the hall, which is twice the size, was full, and the halls were full ... of [district attorneys] and sheriffs coming down to oppose the bill," she says. The bill died on the spot. In Louisiana and other parts of the South, district attorneys and sheriffs — who Mangham calls "the courthouse crowd" — have a lot of political clout at the state level. She says it's understandable why most sheriffs opposed the bill, because they house state prisoners in parish jails and every prisoner represents a payment from the state.

"So when you're making money to warehouse prisoners, why on earth would you be in favor of sentencing reform?" Mangham says.

But the district attorneys' opposition is more complex — and interesting. And it's emblematic of a growing conflict that's taking place nationally between sentencing reformers and prosecutors.

The vast majority of criminal cases in America are resolved through plea bargains. Defendants plead guilty out of fear of getting a worse sentence if they don't. Plea bargains jumped above 90 percent in the 1980s and '90s, in part because a wave of harsh new sentences for drug offenses strengthened prosecutors' hands when bargaining with defendants.

"For a DA to have the ability to dangle over someone's head 10, 20 years in jail, that provides them with tremendous leverage to pretty much get whatever they want," says Louisiana State Sen. J.P. Morrell, a Democrat from New Orleans and former public defender.

Morrell was one of the sponsors of the marijuana sentencing reform bill that failed in Baton Rouge. He says one of the benefits of that reform would have been a reduction in the power of prosecutors to, as Louisiana courthouse slang puts it, "bitch" a defendant. A reference to Louisiana's habitual offender law, it refers to a DA threatening to use past convictions — often for marijuana possession — to multiply the length of a defendant's potential sentence.

But what Morrell sees as a problem, prosecutors regard as a necessary tool. That's because many states are now considering similar reductions to mandatory minimum sentences for drug offenses, and Congress is considering a similar move for federal drug charges. Prosecutors insist they use the threat of harsh sentences responsibly but say it's a tool they can't do without. Last fall, at a hearing in the U.S. Senate Judiciary Committee, the then-executive director of the National District Attorneys Association, Scott Burns, warned against rolling back drug sentences.

"Why now? With crime at record lows, why are we looking at sweeping changes?" Burns said. He endorsed "smart on crime" reforms such as drug courts, but he cautioned against depriving prosecutors of "one of our most effective sticks."

John de Rosier, the district attorney of Calcasieu Parish, La., says "we have people all the time that we know have been involved in robberies, rapes and murders. We haven't been able to prove our cases, but we're in court with them for second-offense possession of marijuana. What do you think we're going to do?"

That's commonly referred to as "prosecutorial discretion," and it's an argument that alarms sentencing reformers like Morrell. "That level of discretion ought to be terrifying to people," Morrell says. "If you cannot convict someone of a murder, of a robbery, whatever, the fact that you have a disproportionate backup charge to convict them anyway kind of defeats the purpose of due process."

July 9, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, July 08, 2014

Even as its prospects dim, Smarter Sentencing Act is impacting federal sentencing proceedings

The lack of serious congressional action on the Smarter Sentencing Act now nearly six months after the SSA passed through the Senate Judiciary Committee with bipartisan support (basic here) has led me to conclude that the prospect of the SSA's enactment into law this year is now quite dim. Nevertheless, as highlighted by this local story from Maine, the SSA is still impacting the work of federal sentencing courts. The article is headlined "Monroe marijuana farm patriarch sentence postponed for Smarter Sentencing Act passage," and here are the basics:

A federal judge postponed the sentencing of a Waldo County man found guilty in November of operating a large-scale, indoor marijuana farm with his family to allow for the possible passage of the Smarter Sentencing Act, which could decrease his sentence. James F. Ford, 58, of Monroe was convicted by a jury in November of one count each of conspiracy to manufacture 100 or more marijuana plants, manufacturing 100 or more marijuana plants, maintaining a drug-involved place and being a felon in possession of a firearm.

The Smarter Sentencing Act, introduced by U.S. Sens. Mike Lee, R-Utah, and Richard Durbin, D-Illinois, is a bill making its way through the Senate that would reduce mandatory minimum sentences for some nonviolent drug offenders and allow those incarcerated to apply for sentence reductions, among other changes to mandatory federal sentencing laws.

“The Smarter Sentencing Act may have a drastic effect on Mr. Ford’s sentence,” states the motion filed by defense attorney Hunter Tzovarras of Bangor. ”In the interest of fairness and justice, it is respectfully requested the court use its discretion and continue the sentencing until November 2014.”...

Assistant U.S. Attorney Andrew McCormack objected to the defense motion, saying the bill might not provide the desired reductions and there is a possibility the delay could mean the government could lose the right to seize the Fords’ home, where the marijuana growing took place. “It is pure conjecture at this time as to the final form, if any, the Smarter Sentencing Act will take,” McCormack said in his opposing motion. “Even if the Act does eventually pass, it is almost certain to be in a form different than the current bill."...

U.S. District Judge John Woodcock Jr. agreed with Tzovarras and postponed Ford’s sentencing until Nov. 21, 2014. Ford, who was convicted of growing marijuana in Massachusetts, moved the family pot-growing operation from Massachusetts to Monroe after he completed a sentence of probation in the Bay State, McCormack told the jury in his closing argument in Ford’s trial.

Due to the Massachusetts conviction, Ford faces a mandatory minimum of 10 years and maximum of life in prison and a fine of up to $8 million on the conspiracy charge under the current federal sentencing guidelines....

Members of the Ford family were arrested in November 2011 when the Maine Drug Enforcement Agency raided the family’s Swan Lake Avenue garage, and found hundreds of thousands of dollars worth of marijuana. During the raid, police seized more than 300 marijuana plants in various stages of growth, 10 pounds of processed marijuana and two semiautomatic assault weapons. Tzovarras, in his Monday motion, states the Smarter Sentencing Act, if passed, would reduce mandatory minimum sentences for manufacturing, distribution, dispensing, possession and importing or exporting specific controlled substances. “If the court determines a mandatory minimum penalty applies to Mr. Ford, that mandatory [minimum] penalty would be reduced by half, from 10 to 5 years,” the defense attorney states.

July 8, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Monday, June 23, 2014

Another account of how ACCA interpretation aggravation endures, this time in Maryland

Sentencing fanatics know full well the multi-dimensional jurisprudential mess that is application of the Armed Career Criminal Act in federal courts, and this lengthy Baltimore Sun article details how crabby these ACCA problems have become in Maryland. (Hat tip: How Appealing.)  The piece is headlined "Sentences challenged for Maryland prisoners deemed to have violent pasts: Supreme Court ruling triggers wide-ranging review in dozens of cases," and here are excerpts:

A little-noticed and highly technical Supreme Court decision is opening the way for dozens of federal inmates from Maryland to seek reduced sentences — even though trial judges found they had violent criminal pasts.  For some, the high court decision has already meant that sentences of 15 years and more have been cut substantially.  One inmate, for example, saw his sentence reduced from 15 years to about six years; he was released in February....

Prosecutors, including Maryland U.S. Attorney Rod J. Rosenstein, said lengthy sentences are necessary to rid the streets of violent offenders who continue to carry guns or commit other crimes.  "Defendants who indisputably committed violent crimes will get a break as result of this opinion," he said.

But advocates for the inmates say such sentences, which take certain previous convictions into account, are used indiscriminately and undermine the judiciary's role in crafting fair punishments.  "The petitions I've filed are going to undo the unjust incarceration of lots of people who should never have gotten these mandatory sentences," said Paresh S. Patel, an appeals attorney at the federal public defender's office. The office has filed challenges on behalf of 55 inmates and plans to pursue 13 more.

The petitions follow a 2013 Supreme Court decision that tweaked the way federal judges evaluate a defendant's criminal history when setting sentences in certain cases. Subsequent lower court decisions opened the way to the wave of challenges in Maryland....

A Reagan-era federal law called the Armed Career Criminal Act turns the 10-year maximum penalty for a felon ... possessing a gun or ammunition into a 15-year minimum for anyone previously convicted of three or more "violent felonies" or "serious drug offenses."  But determining which state laws should be included in those categories has continually vexed the courts.  

The Supreme Court case dealt with California's burglary statute, which covers everything from shoplifting to a violent break-in.  Federal judges had previously looked at the details of some prior convictions to determine whether an offender should be considered violent.... But the Supreme Court said that approach by judges is unreliable.  "The meaning of those documents will often be uncertain," Justice Elena Kagan wrote for the majority. "And the statements of fact in them may be downright wrong."

Instead, Kagan wrote, sentencing judges should only consider whether the barest elements of the crime — those that prosecutors must prove beyond a reasonable doubt — make the offense necessarily violent.  According to the high court, California's burglary law did not qualify.  Neither did Maryland's second-degree assault statute, which covers everything from unwanted touching to a violent beating, the 4th U.S. Circuit Court of Appeals ruled later.

In the aftermath of that ruling, at least one inmate convicted in Maryland, Ronald Hamby, has already been released....  He was convicted on a federal gun charge in 2007 and, because he had three prior second-degree assaults on his record, received a 15-year sentence.

Judge William D. Quarles Jr. said at Hamby's sentencing that he regretted the term he had to impose.  He added, "Mr. Hamby, sentencing is never a pleasure for a judge, and there are some things that make it considerably less pleasant, such as sending a 26-year-old person away for 15 years."

Attorney Joseph L. Evans, who defended Hamby at trial, said in a recent interview that his client was not the kind of person the law was intended to target.  Evans said the assaults "weren't stranger-on-stranger incidents. It wasn't like some sort of gang activity, or drug-related activity.  It was youngish guys acting out in stupid ways that violated the law." After the Supreme Court ruling, Hamby challenged his 15-year sentence and was resentenced to the time he had already served in prison plus two weeks.  He was released from federal custody in February.

Patel said the federal public defender's office is seeking to revise sentences in gun cases as well as others in which defendants were marked as career offenders.

While all the cases in dispute differ, Rosenstein said his office faces a difficult time upholding the long prison terms it originally secured.  He called new interpretations of sentencing laws "one-way ratchets in favor of the defendants."  Had prosecutors known the sentences were vulnerable, Rosenstein said, they might have used a different strategy — pursuing a different combination of charges, for example — to obtain a similar outcome.

Mary Price, general counsel of the advocacy group Families Against Mandatory Minimums, said that is one of the benefits of the Supreme Court ruling.  Rather than letting prosecutors depend on the mandatory sentences, the new approach will require them to work a bit harder to convince judges to hand out long prison terms, keeping the bench as a check on the system, she said. "Mandatory minimums provide prosecutors control over what the sentence is," Price said. "That whole setup has a problem with it."

June 23, 2014 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Sunday, June 22, 2014

New York Times editorial laments stalled federal sentencing reform

Today's New York Times has this lengthy editorial, headlined "Sentencing Reform Runs Aground," expressing justified concerning that bipartisan support for federal sentencing reform has not yet been enough to secure legislative action. Here are excerpts:

Criminal justice reform is one of the rare issues on which there has been bipartisan support in Congress and significant progress toward a legislative solution. Until recently, anyway.

Two bills, each with Republican and Democratic sponsors, were expected to come up for a vote by this summer — one that would reduce lengthy sentences for many low-level drug offenders and another that would give low-risk inmates credit toward early release if they participate in job-training and drug treatment programs. But progress on both bills has stalled, and congressional leaders who were once confident about their chances this year are now looking toward 2015, at the earliest.

Meanwhile, tens of thousands of federal inmates — many of whom have already served years of unjustly long drug sentences — continue to sit in overstuffed prisons, wasting both their lives and taxpayer dollars at no demonstrable benefit to public safety....

So why the delay? One major factor has been resistance from members of the old guard, who refuse to let go of their tough-on-crime mind-set. In May, three senior Republican senators — Charles Grassley of Iowa, John Cornyn of Texas and Jeff Sessions of Alabama — came out against the sentencing reductions, arguing that mandatory minimums are only used for the highest-level drug traffickers. This assertion is contradicted by data from the United States Sentencing Commission, which found that 40 percent of federal drug defendants were couriers or low-level dealers.

Another factor was the Obama administration’s April announcement that it would consider clemency for hundreds, if not thousands, of inmates currently serving time under older, harsher drug laws. Republicans complained that this — along with other executive actions on criminal justice by Mr. Obama and Attorney General Eric Holder Jr. — took the wind out of reform’s sails.

But with the exception of some old-line prosecutors and resistant lawmakers, everyone still agrees on the need for extensive reform. The other branches of the federal government have begun to do their part: Federal judges across the country have spoken out against the mindlessness of mandatory minimums. The sentencing commission voted in April to reduce many drug sentencing guidelines. And the Justice Department under Mr. Holder has taken multiple steps to combat the harsh and often racially discriminatory effects of those laws.

The public is on board too. According to a recent Pew survey, 67 percent say the government should focus more on treating drug users than on prosecuting them.

Some members of Congress get it. On the right, the charge for reform has been led by Rand Paul of Kentucky, Mike Lee of Utah, Ted Cruz of Texas and Jeff Flake of Arizona. Yet the prospect of reform has become more precarious, even as the need for it has become more urgent.

Judicial pronouncements and executive orders only go so far. It is long past time for Congress to do its job and change these outdated, ineffective and unjust laws.

June 22, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Sunday, June 15, 2014

"Lawmakers should be parsimonious — not sanctimonious — on drug sentencing"

The title of this post is the headline of this new commentary at The Hill authored by Jamie Fellner.  Here are excerpts:

Hopes are high that the U.S. Congress will do the right thing this year and reform notoriously harsh federal drug sentencing laws that have crammed U.S. prisons with small-time offenders.

The bipartisan Smarter Sentencing Act, approved by the Senate judiciary committee and now awaiting debate in the full Senate, would reduce federal mandatory minimum sentences for certain drug offenders, increase the number who can avoid them altogether, and permit prisoners serving time under outdated crack-cocaine sentencing laws to seek lower sentences. Passage would begin to reverse a decades-long trend that's seen "too many Americans go to too many prisons for far too long and for no good law enforcement reason," as Attorney General Eric Holder put it earlier this year.

Although legislators may not realize it, reduction of unduly severe sentences for drug offenders will help bring federal sentencing back in line with the long-overlooked principle of "parsimony." In the criminal justice context, parsimony dictates that sentences should be no greater than necessary to serve the legitimate goals of punishment, namely, retribution for past crimes, deterrence of future ones, and rehabilitation of the offender.

Congress once recognized the importance of parsimony. In the Sentencing Reform Act of 1984, it instructed federal judges to impose sentences that were “sufficient, but not greater than necessary” to advance the purposes of punishment. But starting in 1986, against a backdrop of social and economic turmoil, racial tension, and the advent of crack cocaine, Congress enacted mandatory minimum drug sentencing laws with stunning disregard for whether they would yield needlessly harsh sentences -- which they invariably did for the low-level offenders who made up the bulk of those receiving them....

Opponents of the Smarter Sentencing Act, including some current and retired federal prosecutors, insist — without evidence – that the mandatory drug sentences are necessary to protect public safety. They also claim — and here the evidence is on their side — that the threat of high mandatory sentences helps convince defendants to plead guilty and cooperate with the government in exchange for lesser punishments. Because judges have no choice but to impose the mandatory minimums triggered by the charges prosecutors file, prosecutors can make good on the threat of higher sentences for those defendants who insist on going to trial: their sentences are on average three times longer than for those who plead. Not surprisingly, ninety-seven percent of drug defendants choose to plead guilty. Opponents of drug law reform seem to forget — or don't care — that the purposes of punishment do not include bludgeoning defendants into pleading.

Each year, hopes for federal drug sentencing reform are dashed by legislative inertia and a few powerful legislators who cling to outdated “tough on crime” notions. Perhaps this year will be different. A growing number of lawmakers, Republicans and Democrats, realize that lengthy mandatory minimum drug sentences are ineffective, wasteful, and expensive. And though few may use the term parsimony, many have come to understand that unnecessarily harsh sentences make a mockery of justice.

June 15, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Saturday, June 14, 2014

Ohio legislature wisely considering move to make ignition locks mandatory for DUI offenders

Though I often advocate against lengthy federal mandatory minimum prison terms, I am not categorically opposed to legislative sentencing mandates when there is good reason to believe that the particulars of the mandate will likely save lives and have a limited impact on human liberty and the pursuit of happiness.  Consequently, I was very pleased to see this story in my local paper today, headlined "All drunken drivers may be subject to safeguard," discussing a proposal in Ohio to make ignition locks mandatory for all drunk driving offenders.  Here are the details:

Ohio lawmakers are considering requiring first-time drunken-driving offenders to have an ignition breathalyzer installed on their cars to confirm their sobriety during a six-month penalty period. The law now allows judges to order the ignition interlocks, but the House bill would make their use mandatory. Offenders convicted twice within six years must use the devices.

The bill sponsor, Rep. Terry Johnson, R-McDermott, cites federal figures that ignition-interlock devices reduce DUI re-arrest rates by 67 percent. About 25,000 first-time offenders are convicted each year in Ohio. The devices would replace a system in which first-time DUI offenders are not allowed to drive for 15 days and then can obtain limited driving privileges to travel to work, school and medical appointments.

“There is nothing to ensure compliance and nothing to ensure sobriety unless they happen to get caught again,” Johnson said. “This allows the offender to continue working and to minimize disruption to his life while ensuring public safety to the extent we are reasonably able to do so.”

A change in the bill last week also would require those charged with DUI but convicted of lesser offenses, such as physical control of a vehicle while intoxicated, to install the machines in their cars....

Only about 5,000 Ohioans, including repeat DUI offenders, are required each year to use ignition interlocks, said Doug Scoles, executive director of Ohio MADD. Twenty states now require their use by first-time offenders. “Requiring the use of ignition interlocks for all convicted drunk drivers will help prevent repeat offenses and, in so doing, save lives,” Scoles said.

The State Highway Patrol reports 341 people died in drunken-driving crashes last year. Seventy-seven people have been killed so far this year, 38 fewer that at the same time in 2012.

The bill is dubbed “Annie’s Law” in memory of Chillicothe lawyer Annie Rooney, who was killed last year by a drunken driver now serving eight years in prison. Her family has campaigned for passage of the bill. Lara Baker-Morrish, chief prosecutor for the city of Columbus, calls the legislation “a very good idea.”

“It does curb the behavior we’re trying to get at, and it has been proven to save lives,” she said. Courts would have to find ways to monitor the increase in ignition-interlock reports on drivers and find funding to ensure devices are made available to those who can’t afford installation and monitoring, she said.

I hope my old pal Bill Otis is heartened to hear of my support for a legislative sentencing mandate. I also hope those who advocate forcefully for rigid forms of gun control and for drug control recognize that that drunk drivers often pose a greater threat to innocent lives and the pursuit of happiness than even drunk gun owners or heroin dealers and that clever technologies, rather than crude prohibitions, may be the most politically wise and practically workable means to reduce these threats.

June 14, 2014 in Criminal Sentences Alternatives, Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (6) | TrackBack

Thursday, June 05, 2014

Will Canada's courts continue to strike down mandatory minimums as unconstitutional?

The question in the title of this post is prompted by this interesting recent commentary in a Canadian paper sent my way by a helpful reader.  The piece by Lisa Kerr is headlined, "Mandatory minimums for drug crimes have no future in Canada: As the B.C. Court of Appeal prepares to hear the first major challenge to mandatory minimums, there’s reason to think the policy will be rightly short-lived."  Here are excerpts:

This week, the B.C. Court of Appeal hears the first major challenge to the latest symptom of a punitive plague: mandatory incarceration for a drug crime. The defendant, 25-year-old Joseph Lloyd, lives in the downtown eastside of Vancouver, where he struggles with addiction and regularly interacts with the court system. In the past, local judges could use their expertise to craft an individualized punishment for people like Lloyd. Community supervision, drug programming, or specific amounts of jail time could target his specific circumstances.

New legislation compels judges to impose a minimum one-year prison term on all individuals who meet a handful of criteria. Judges can no longer consider whether it is in the public interest to incarcerate someone like Lloyd, or for how long. They can no longer consider whether a person will lose housing or employment. While one year in a chaotic jail is unlikely to help a struggling individual to recover stability, that is a judge’s only option unless the law is struck down.

In the United States, the removal of discretion from sentencing judges is the central cause of its famously high rate of incarceration. There are nine million prisoners in the world. Over two million of them are in the U.S....

The arrival of mandatory sentences does not herald the “Americanization” of Canadian crime policy. The deep principles of our criminal justice system cannot be dismantled overnight. Our prosecutors are not a bloodthirsty lot — they are largely anonymous and professional public servants. Unlike many of their American counterparts, Canadian prosecutors are not subject to elections and public scrutiny. They are better positioned to pursue a broad notion of the public interest, rather than just long prison sentences.

Canadian judges are also likely to resist interference by politicians who are detached from the daily reality of human misery faced in criminal courts. And they have the tools to do so. While Canada and the U.S. have identical language in the constitutional prohibition against “cruel and unusual punishment,” the prohibition has been interpreted very differently in the courts.

In 2003, the U.S. Supreme Court upheld a life sentence for a third offence of stealing golf clubs. In 1987, the Canadian Supreme Court struck down the only previous attempt at automatic incarceration for drug crime: a seven-year term for drug trafficking. So far, mandatory sentences for non-violent drug offences are unconstitutional in this country.

Canadian institutions are likely to resist this untimely American policy transplant. There is no collapse of faith in our courts, there is no crime wave, and there is no Southern Strategy. Joseph Lloyd should encounter a court system that is free to encounter him.

June 5, 2014 in Mandatory minimum sentencing statutes, Sentences Reconsidered, Sentencing around the world, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, June 04, 2014

Over 1000 faith leaders sign letter in support of Smarter Sentencing Act

As highlighted by this article, over "1,100 clergy and faith leaders urged Congress to pass legislation reducing federal mandatory minimum sentences for drug offenses in a June 3 letter to party leaders in the House and Senate."  Here is more about the prominent voices joining the chorus advocating for federal sentencing reform:

A total of 1,129 signers asked Senate Majority Leader Harry Reed (D-Nev.), Senate Minority Leader Mitch McConnell (R-Ky.), House Speaker John Boehner (R-Ohio) and House Minority Leader Nancy Pelosi (D-Calif.) to support the Smarter Sentencing Act, a bipartisan measure that passed the Senate Judiciary Committee in January. The faith leaders said tough sentencing laws passed in the 1980s “war on drugs” disproportionately affect minorities....

“For too long, Congress has ignored the consequences of the harsh sentencing policies it approved during the 1980s and the disproportionate harm it has caused people of color and those convicted of low-level offenses,” the letter said. “The Smarter Sentencing Act is a step towards addressing racial injustice as well as reducing mass incarceration that characterizes our current justice system.”

Roy Medley, general secretary of American Baptist Churches USA, was a lead signer for the letter coordinated by the Faith in Action Criminal Justice Reform Working Group, a coalition of 43 faith organizations chaired by the United Methodist General Board of Church & Society.

June 4, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, May 30, 2014

US House hearing on "Penalties" as part of Over-Criminalizaiton Task Force

Taking place as I write this post is a notable hearing (which I am watching live via this link) of the Over-Criminalizaiton Task Force of the Judiciary Committee on the topic of "Penalties." Here is the witness list, with links to their written statements: 

A quick scan of the submitted testimony linked above reveals that regular readers of this blog will not find all that much which is new from the witness. But the submitted statements still provide a very effective review of all the essential elements of the modern debate over federal mandatory minimum sentencing provisions.

UPDATE:  TheHouse hearing adjourned just before 11am, after most of the usual suspects had the opportunity to stake out their usual positions.  I doubt this hearing moved the needle in any significant way, though I still found notable and telling that the US House Representatives arguing against the modern drug war and sentencing status quo generally seemed much more passionate and animated than those eager to support the status quo.

May 30, 2014 in Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Sunday, May 25, 2014

Detailing the Keystone State's enduring Alleyne problems

This local AP story from Pennsylvania, headlined "Supreme Court ruling snarls sentencing minimums," provides another review of the headaches that state courts are facing with its sentencing scheme in the aftermath of the US Supreme Court's Sixth Amendment ruling in Alleyne last year. Here are some excerpts:

A U.S. Supreme Court decision last year has prompted dozens of appeals in criminal cases across Pennsylvania and left judges scratching their heads on how to apply state laws on mandatory minimum sentences. The confusion has prompted meetings among judges, forced some judges to try out new jury instructions and even led some jurists to conclude that whole sections of state law are unconstitutional.

Legal experts say what happens next will be driven largely by cases already on appeal to the Pennsylvania Supreme Court. “No appellate court in Pennsylvania has gotten around to definitively deciding the question, and everybody, it seems, is waiting for someone else to decide it,” said St. Vincent College law professor Bruce Antkowiak, a former federal prosecutor and defense attorney.

The stumbling block is Alleyne v. United States, a high court decision stemming from a Virginia federal court case that found that juries, not judges, should decide whether a defendant committed crimes that trigger a mandatory minimum sentence. But Pennsylvania law says a jury decides a person’s guilt or innocence of the underlying crime, such as drug possession or robbery. A judge then uses a lower standard of proof to decide whether the mandatory sentencing “triggers” were proved — such as being in a school zone when drug dealing or brandishing a gun during the robbery.

Judges in at least one jurisdiction, Blair County in central Pennsylvania, recently decided to stop imposing mandatory minimum sentences altogether until the General Assembly rewrites the statutes. The judges made the decision after hearing arguments from prosecutors and a defense attorney for two men facing five-year mandatory minimums — one accused of dealing drugs in a school zone; the other charged with having a weapon while in possession of marijuana....

Since the Alleyne ruling, some Pennsylvania judges have begun asking juries to determine whether certain mandatory minimum triggers have been proved, even though state law doesn’t allow that. Other judges have ruled that Alleyne makes Pennsylvania criminal statutes containing mandatory minimum sentencing provisions unconstitutional in their entirety.

In eastern Pennsylvania, Lycoming County District Attorney Eric Linhardt said judges there first allowed juries to decide mandatory minimum sentences before reversing course and ruling the statutes illegal. “Ten cases are presently on appeal, and many others will soon follow,” Linhardt said, adding the impasse could affect 100 pending drug cases in his office.

Recent related post:

May 25, 2014 in Blakely in the States, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Saturday, May 24, 2014

"Sentencing Debate Reveals Divide Among Republicans"

The title of this post is the headline of a recent article by John Gramlich via CQ News (which, I fear, is trapped behind a pay-wall). Here are excerpts:

A Senate proposal to cut mandatory minimum drug sentences in half has exposed a rift between senior, establishment Republicans who stress their law-and-order credentials and junior, more libertarian-minded members of the party who want to shrink the federal role in incarceration.

Sponsored by Sens. Richard J. Durbin, D-Ill., and Mike Lee, R-Utah, the bill (S 1410) is seen as a candidate for floor action following the Memorial Day recess after being approved by the Judiciary Committee, 13-5, in January. But the measure’s prospects are uncertain, with differences among Republicans becoming increasingly apparent. The bill’s six GOP cosponsors include five first-term senators: Lee, Jeff Flake of Arizona, Rand Paul of Kentucky, Ted Cruz of Texas and Ron Johnson of Wisconsin.

Several of those lawmakers have strong tea party support and view the proposal through a libertarian lens. They cast it as a way to cut taxpayer spending on prisons while preserving individual liberties by doing away with tough penalties for low-level, nonviolent drug offenders.

By contrast, the bill’s chief Republican opponents are a trio of establishment Republicans who have long pointed to their “tough on crime” bona fides. They are Majority Whip John Cornyn of Texas, a former state attorney general and judge; Jeff Sessions of Alabama, a former federal prosecutor, and Charles E. Grassley of Iowa, the Judiciary Committee’s ranking member and arguably the Senate’s staunchest defender of mandatory minimum penalties....

Beyond the philosophical disagreement, there also appears to be a generational split among Republicans when it comes to sentencing, said William G. Otis, a law professor at Georgetown University and former special counsel to President George H.W. Bush. The average age of the Republicans who voted for the bill in committee earlier this year was 45, as Slate magazine noted in February. The average age of the Republicans who opposed it was 69.

Otis, who opposes the bill, said older Republican senators may be basing their views of the legislation on their personal recollections of the national crime wave that led to tougher criminal sentencing laws.  “For those of us that age, we remember what it was like, because we grew up in the ‘60s and ‘70s and the experience of the crime wave of those two decades is vivid,” Otis said.  “My generation remembers that.  Rand Paul’s generation, Jeff Flake’s generation and Mike Lee’s generation does not.”...

Paul, who is perhaps the Senate’s most prominent Republican supporter of shortening criminal sentences, so far has been unable to persuade Minority Leader Mitch McConnell, R-Ky., to back the plan....

Laurie A. Rhodebeck, a political science professor at the University of Louisville, said the two senators likely have different constituencies in mind. She noted that Paul may have higher political ambitions and has sought to broaden the appeal of the Republican Party by reaching out to minorities, who often face long criminal sentences for drug crimes. “The way I see the big picture is that Rand Paul seems to be speaking to a national audience right now, rather than a Kentucky audience,” Rhodebeck said. “I assume that’s in keeping with his possible interest in running for the GOP nomination in 2016.”...

To be sure, Democrats may not be united within their own ranks on the bill. Sen. Dianne Feinstein, D-Calif., and Charles E. Schumer, D-N.Y., both have expressed reservations about it, even though they agreed to advance the measure to the full Senate. GOP support for the proposal, meanwhile, is not limited only to first-term senators who are identified with the tea party. Sen. Johnny Isakson, R-Ga., is the sixth GOP cosponsor of the bill and has served in the Senate since 2005.

But the Republican split could be a consequential factor in whether the proposal reaches the floor in an election year in which control of the Senate is at stake. Majority Leader Harry Reid, D-Nev., has indicated he would like to bring up the proposal, but Durbin has suggested that there may be complications in rounding up the votes for passage. A divide among outside conservative advocates may be among the complications.

At a forum this week of conservatives in favor of overhauling the nation’s criminal justice policies, prominent figures including former House Speaker Newt Gingrich, R-Ga., and former National Rifle Association President David Keene made the case for a less punitive approach....

But a group of prominent former federal prosecutors, including two former Republican attorneys general, wrote to Reid and McConnell earlier this month to urge them not to bring the sentencing bill to the floor. Like Grassley and the other Senate Republicans, they warned it would threaten public safety.

I would put a slightly different spin than Bill Otis on the notable fact that the "average age of the Republicans who voted for the [SSA] in committee earlier this year was 45 [while the] average age of the Republicans who opposed it was 69." I would say that supporters of the bill understand that new political and legal realities may call for changing laws passed decades ago, whereas opponents of the bill see little need to update these sentencing laws for modern times.

Some older and recent posts on the "new politics" of sentencing reform:

May 24, 2014 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (4) | TrackBack

Friday, May 16, 2014

Form, function and finality of sentences through history: the Modern Era

As explained here, I am "celebrating" the official publication of my new article titled "Re-Balancing Fitness, Fairness, and Finality for Sentences" (which is available in full via this SSRN link) through a series of posts exploring sentence finality doctrines and practice.  And, as set forth in this prior post, a central theme of my piece is that different conceptual, policy, and practical considerations are implicated when a defendant seeks only review and reconsideration of his final sentence and does not challenge his underlying conviction.  

As noted in prior posts, my theme is developed descriptively in the first part of my article as I showcase (perhaps too briefly) how the forms and functions of different punishment systems throughout US history provide different frameworks for the legal and practical relationship between conviction finality and sentence finality.  In this post, I will reprint my article's final historical observations about sentence finality during the "Modern Era" stretching from the the 1970s through today.  At the start of this period, U.S. sentencing philosophies, policies, and practices changed dramatically.  Legislatures through this period have embraced determinate sentencing laws that require prison sentences for most offenses and require very lengthy prison terms for nearly all serious offenses and repeat offenders.  These modern sentencing realities, in turn, has considerably changed the nature and stakes of issues surrounding sentence finality:

[Modern incarceration] statistics suggest there may now be more individuals condemned to die in America’s prisons based on their current “final” sentences than the total prison population in the 1960s when courts and scholars began earnestly discussing the importance of finality for criminal judgments.  As explained before, the then-prevailing practices of indeterminate sentencing and parole entailed that the vast majority of 300,000 persons incarcerated in 1970 could take comfort in the then-prevailing reality that the duration of and justification for their ongoing prison terms would be regularly reviewed and reconsidered by corrections officials.  Today, in sharp contrast, the majority of the 2.25 million incarcerated individuals in the United States cope with the now-prevailing reality that their prison sentences are fixed and final and not subject to any regularized means of review or reconsideration for any purposes.

In sum, the transformation of the sentencing enterprise and embrace of mandatory sentencing schemes throughout the United States over the past four decades has been remarkable and remarkably consequential for the considerable number of offenders sentenced to significant terms of imprisonment.  The highly discretionary indeterminate sentencing systems that had been dominant for a century have been replaced by an array of sentencing structures that govern and control sentencing decisionmaking.  Most pertinent to the topic of this Essay, prison sentences that had for more than a century been defined by a lack of finality are now fixed and final in the vast majority of all serious criminal cases at the moment they are announced by a sentencing judge.  Consequently, two centuries of U.S. criminal justice experience in which sentence finality was not a distinct concern has given way, due to dramatic changes in sentencing laws, policies, and practices, to a modern era of mass and massive terms of incarceration that makes the treatment of final sentences arguably the most important issue for hundreds of thousands of current prisoners and for the tens of thousands more defendants being sentenced to lengthy prison terms each year throughout the United States.  Sentence finality, in short, has gone from being a non-issue to being arguably one of the most important issues in modern American criminal justice systems.

Prior posts in this series:

May 16, 2014 in Mandatory minimum sentencing statutes, Recommended reading, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Thursday, May 15, 2014

Intriguing Second Circuit opinion concerning which priors trigger 10-year child porn mandatory

Today in US v. Lockhart, No. 13-602 (2d Cir. May 15, 2014) (available here), a Second Circuit panel resolves a notable statutory question concerning what prior sex offenses serve as predicates triggering a 10-year mandatory minimum prison term for a child porn possession offense.  Here is how the opinion in Lockhart starts along with a later paragraph highlighting why this issue could perhaps get Supreme Court attention:

In this case, we must decide whether a sentencing provision that provides for a ten‐year mandatory minimum term of imprisonment if a defendant was previously convicted “under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward,” 18 U.S.C. § 2252(b)(2), requires that an “aggravated sexual abuse” or “sexual abuse” conviction involve a minor or ward, or whether only “abusive sexual conduct” is modified by the phrase “involving a minor or ward,” such that a sexual abuse conviction involving an adult victim constitutes a predicate offense. We conclude that the statutory text and structure indicate that the latter reading is correct and therefore affirm the district court’s imposition of a ten‐year sentence on Defendant‐Appellant Avondale Lockhart....

Looking at § 2252(b)(2) as a whole, we find, as a number of other circuits have explained, that “it would be unreasonable to conclude that Congress intended to impose the enhancement on defendants convicted under federal law, but not on defendants convicted for the same conduct under state law.” United States v. Spence, 661 F.3d 194, 197 (4th Cir. 2011).... This reasoning compels us to conclude that “involving a minor or ward” modifies only prior state convictions for “abusive sexual conduct,” not those for “sexual abuse” or “aggravated sexual abuse,” each of which would constitute a predicate federal offense if committed against an adult or a child.

We acknowledge that the Sixth, Eighth and Tenth Circuits have reached the opposite conclusion, namely, that the phrase “involving a minor or ward” modifies all three categories of state sexual abuse crimes.  However, the Eighth and Tenth Circuits have drawn this conclusion without elaborating on their reasoning. Indeed, these circuits appear merely to have assumed that a prior state‐law sexual abuse conviction requires a minor victim for purposes of the sentencing enhancement, an assumption that made little difference in those cases since the predicate violations at issue involved minor victims.... The Sixth Circuit has reached this conclusion most explicitly, although it did so because it found that another panel of that court had “already considered the proper construction of the statutory language at issue,” and that that prior decision bound the current panel, even though the earlier opinion did not engage in any express analysis of the statutory language.  United States v. Mateen, 739 F.3d 300, 304–05 (6th Cir. 2014) (citing United States v. Gardner, 649 F.3d 437 (6th Cir. 2011)), reh’g en banc granted, opinion vacated (Apr. 9, 2014).  We are not compelled to follow such unexplored assumptions in coming to our conclusion here.

May 15, 2014 in Mandatory minimum sentencing statutes, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Wednesday, May 14, 2014

How do we reconcile Senator Jeff Sessions' vocal support for the FSA and strong opposition to the SSA?

SessionsThere are many interesting claims and notable contentions in the letter sent by Senators Grassley, Cornyn and Sessions to their colleagues explaining their opposition to the Smarter Sentencing Act (first reported here).  Most notable, I think, are the essential ideas set out at the start and end of the letter: despite a decades-long federal drug war that has grown the size of the federal government and has long included severe mandatory minimums prison terms, we still find ourselves in the midst of a "historic heroin epidemic" which apparently calls for "redoubling our efforts." I believe that the sensible response to ineffective federal government drug policies and practices would be to consider changing some of these policies and practices, not "redoubling our efforts" (and thereby redoubling the size of an apparently ineffective federal government bureaucracy).

But, as the question in the title of this post suggests, I am now especially wondering how Senator Jeff Sessions, who was a vocal supporter of Congress's decision in 2010 to reduce crack mandatory minimum sentences through the Fair Sentencing Act, has now signed on to a letter forcefully opposing a proposal to reduce other drug mandatory minimum sentences through the Smarter Sentencing Act.   Notably, in this March 2010 statement, Senator Sessions stated that he has "long believed that we need to bring greater balance and fairness to our drug sentencing laws" and that the FSA's change to crack mandatory minimums will "achieve needed fairness without impeding our ability to combat drug violence and protect victims." In his words, the FSA's reforms to crack mandatory minimums "strengthen our justice system."

But now, four years later, Senator Sessions has signed on to a letter opposing the Smarter Sentencing Act which claims that this proposal to "reduce sentences for drug traffickers would not only put more dangerous criminals back on the streets sooner, but it would send the message that the United States government lacks the will or is not serious about combatting drug crimes." This letter also asserts that "lower mandatory minimum sentences mean increased crime and more victims."

Critically, the SSA changes federal drugs sentencing laws significantly more than the FSA: the SSA cuts the minimum prison terms for all drug offenses rather than just increasing the amount of one drug needed to trigger existing mandatory prison terms as did the FSA.  Consequently, one can have a principled basis to have supported the FSA's reduction of crack sentences (as did nearly every member of Congress when the FSA passed) and to now oppose the SSA's proposed reduction of all federal drug sentences.  However, back in  2010, Senator Sessions recognized and vocally stated that reducing some federal drug sentences would actually "strengthen our justice system" by helping to "achieve needed fairness without impeding our ability to combat drug violence and protect victims."  I believe (like a majority of the Senate Judiciary Committee) that the SSA would likewise "strengthen our justice system," but Senator Sessions now seem to think it will "mean increased crime and more victims."

Some prior posts about the SSA and debates over federal sentencing reform:

May 14, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (12) | TrackBack

Tuesday, May 13, 2014

Another notable letter expressing opposition to SSA ... on US Senate letterhead

As noted here in this prior post, Bill Otis at Crime & Consequences broke the news yesterday that a significant number of significant former federal prosecutors signed on to a public letter to Senators Harry Reid and Mitch McConnell to express publicly their opposition to any reform of federal drug mandatory minimums.   This morning I discovered that late yesterday Bill Otis put up here at C&C more notable news about opposition to drug sentencng form:  apparently this week, Senators "Chuck Grassley, John Cornyn and Jeff Sessions [have written] an all-colleagues letter explaining why the Smarter Sentencing Act should be defeated." 

(Side note: I use the term "apparently" concerning the report from Bill Otis regarding this letter because his reprinting of the letter at C&C here includes only the contents of the letter without any date or reprinted signatures.  In addition, Bill provide no link to the actual letter in any form, nor can I find any public resource or news media reporting on this letter.  Also, and a check/search of the official websites of the US Senate and of Senators Grassley and Cornyn and Sessions so far has produced no copy of the letter.   I assume this letter really exists, and I hope to be able to provide a link to an official public release of this letter shortly.  But I am finding it now more than a bit peculiar and troublesome that Bill Otis and Crime & Consequences has seemingly become the (un)official reporter of official opposition to the Smarter Sentencing Act.   These developments reinforce my fear that Bill Otis and perhaps some other unnamed lobbyists and partisans are playing a very significant and cloistered role in seeking to derail any new federal sentencing reforms in Congress.)

Notably, the substance of the letter reprinted at C&C echoes a lot of the themes that have been stressed by opponents of any federal sentencing reform, and it restates some of the points forcefully stated by Senator Grassley in this Senate floor speech last month.  But the letter is now the strongest collection of many of the strongest arguments against some (but not all) of the provisions of the Smarter Sentencing Act.  I recommend everyone read the letter, and I hope to be able to provide a link to a copy of the actual document from an official source before too long.

Some prior posts about the SSA and debates over federal sentencing reform:

UPDATE:  I am pleased and grateful that I was able to receive from a helpful reader a pdf copy of the original letter sent by the Senators referenced in this post and reprinted originally at C&C.   Minus the footnotes, here are the first two paragraphs of the letter followed by a downloadable copy:

The nation is in the midst of an historic heroin epidemic that is wreaking havoc in cities and towns from New England to the Pacific Northwest. According to the Drug Enforcement Administration (DEA), the amount of heroin seized at the southwest border has increased nearly 300% from 2008 to 2013, while heroin-overdose deaths have increased by 45%. At the same time, approximately 4.3 million people abuse or are dependent on marijuana. In 2012, almost 32 million people ages 12 and older reported using marijuana within the past year and, in 2013, one out of every 15 high school seniors reported being a near daily user. According to the 2013 National Survey Results on Drug Use, 50% of high school seniors reported having used illegal drugs at some point in their lives.

It is against this grim backdrop that we write to express our concerns with S. 1410, the "Smarter Sentencing Act of 2014," which would benefit some of the most serious and dangerous offenders in the federal system by cutting in half (or more) mandatory minimum sentences for high-level drug trafficking offenses. The proponents of S. 1410 claim that it will reduce sentences for so-called "low-level, non-violent" drug offenders. These terms, as well as the bill's claimed effect, are highly misleading. In fact, nothing in this bill will affect the lowest level federal drug offenders at all.

Download Senators letter to Colleagues on SSA

May 13, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Monday, May 12, 2014

Significant collection of significant former federal prosecutors write to Senators to oppose SSA

Thanks to this new post by Bill Otis at Crime & Consequences, titled "Former Top DOJ Leaders Oppose the SSA," I have learned that a significant number of significant former federal prosecutors — including former US Attorneys General William Barr and Michael Mukasey — have signed on to a public letter to Senators Harry Reid and Mitch McConnell to express publicly their opposition to any reform of federal drug mandatory minimums. The full text of the letter is available at C&C, and here are excerpts:

Because the Senate is now considering revisiting the subject of mandatory minimum penalties for federal drug trafficking offenses, we take this opportunity to express our personal concerns over pending legislative proposals.  We are concerned specifically by proposals that would slash current mandatory minimum penalties over federal drug trafficking offenses — by as much as fifty percent.  We are deeply concerned about the impact of sentencing reductions ofthis magnitude on public safety.  We believe the American people will be ill-served by the significant reduction of sentences for federal drug trafficking crimes that involve the sale and distribution of dangerous drugs like heroin, methamphetamines and PCP.  We are aware of little public support for lowering the minimum required sentences for these extremely dangerous and sometimes lethal drugs. In addition, we fear that lowering the minimums will make it harder for prosecutors to build cases against the leaders of narcotics organizations and gangs — leaders who often direct violent and socially destructive organizations that harm people throughout the United States.

Many of us once served on the front lines of justice. We have witnessed the focus of federal law enforcement upon drug trafficking — not drug possession offenses — and the value of mandatory minimum sentences aimed at drug trafficking offenses.

Existing law already provides escape hatches for deserving defendants facing a mandatory minimum sentence.  Often, they can plea bargain their way to a lesser charge; such bargaining is overwhelmingly the way federal cases are resolved.  Even if convicted under a mandatory minimum charge, however, the judge on his own can sidestep the sentence if the defendant has a minor criminal history, has not engaged in violence, was not a big-time player,and cooperates with federal authorities.  This "safety valve," as it's known, has been in the law for almost 20 years. Prosecutors correctly regard this as an essential tool in encouraging cooperation and, thus, breaking down drug conspiracies, large criminal organizations and violent gangs.

We believe our current sentencing regimen strikes the right balance between Congressional direction in the establishment of sentencing levels, due regard for appropriate judicial direction, and the preservation of public safety.  We have made great gains in reducing crime.  Our current sentencing framework has kept us safe and should be preserved.

In addition to thinking this letter is a pretty big deal, I am now wondering if it represents the final nail in the Smarter Sentencing Act's coffin or instead reveals that the SSA might still have some legs. Based on the lack of action on the SSA over the last few months, I have been assuming this effort at federal sentencing reform was dying a slow death, and this letter from a lot of prominent former prosecutors provides yet another reason and basis for member of Congress to express additional concerns about the sentencing reforms in the SSA. And yet, if the SSA was already in its death throes, I doubt there would have been so much obvious energy devoted to getting all these prominent former prosecutors speaking out against the reforms in the SSA.

All that said, I continue to find the discussion and debate over the SSA an intriguing (and valuable?) distraction from all the other arguably much-more-consequential federal sentencing developments that are afoot. The fact that prominent Tea-party leaders in the GOP like Rand Paul, Mike Lee and Ted Cruz all support significant federal sentencing reform, the fact that state marijuana reforms seem to be continuing apace, the fact that the US Sentencing Commission has voted to lower most of the drug guidelines, the fact that most federal sentences are now outside the guidelines, and the fact that DOJ and Prez Obama are working hard on clemency reform all will be likely impacting federal sentencing realities more than whether or not the SSA is passed by Congress. (This is not to say that the SSA is not important or potentially consequential, but it is to say that a whole host of much broader forces are changing the dynamics of modern federal sentencing policies and practices.)

Some prior posts about the SSA federal prosecutorial perspectives on sentencing reform:

May 12, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Saturday, May 03, 2014

Noting challenges for mandatory minimum sentencing in Pennsylvania in wake of Alleyne

This local story from Pennsylvania, headlined "Mandatory sentencing disrupted by Supreme Court," discusses some of the difficult issues arising in the Keystone state as a result of the Supreme Court's Sixth Amendment ruling in Alleyne last year. Here are some details:

For the second time in a month, a Common Pleas Court judge has declared a mandatory sentencing provision inserted into a drug trafficking charge unconstitutional because it contradicts a U.S. Supreme Court decision handed down in June of last year.  Judge Phyllis Streitel, in a one-page order issued Tuesday, said the provision that would set a prison term at three years for the defendant, Demetrius Aaron Hardy of Las Vegas, Nev., could not be applied to him in the formal charges leveled by the prosecution without butting up against the high court’s decision....

Alleyne has set prosecutors across the state, including in Chester County, scrambling to add the minimum mandatory provision to drug charges.  It has also led to a slew of challenges to the moves, including an earlier county case that is now before the state Supreme Court.  “It’s a mess,” said one veteran West Chester defense attorney familiar with the appeals but who spoke on the condition on anonymity because he was not authorized to comment on the matter.  “Most of the judges are finding these cases to be unconstitutional.  It has go to be fixed by the legislature, or else there won’t be any more mandatories.”

Mandatory sentences gained popularity in the 1980s, and are now commonplace in many drug prosecutions.  District attorneys appreciate them because they add a level of security in what sentence a particular defendant will receive.  Judges are uncomfortable with them at times, because they remove a level of discretion they have in sentencing individual defendants.  And defense attorneys bristle at them, because they give the prosecution added leverage during plea negotiations with the threat of imposing a mandatory minimum should the defendant seek to go to trial....

Streitel issued a similar order on April 25 in the case of a 49-year-old West Nantmeal man, Dennis “Spanky” Alenovitz, who was arrested in early 2013 on charges that he sold methamphetamine to an confidential informant from his home on Pumpkin Hill Road over a two-month period. Alenovitz is also represented by Green.

The weights of the methamphetamine Alenovitz is alleged to have sold would have in the past automatically set his mandatory prison terms at three or four years, depending on the transaction, should be the prosecution asked the judge sentencing him to impose it.  But under the Alleyne ruling, the weight of the drugs triggering those mandatory sentences would have to be determined by a jury hearing Alenovitz’s case, not a judge, and be proven beyond a reasonable doubt....

Judge David Bortner had already ruled in another county case that adding mandatory provision to a criminal charge was unconstitutional.  That case, involving a Kennett Square man arrested by state police in April 2012, involves a mandatory sentence for selling drugs in a school zone.  That case is currently before the state Supreme Court on appeal by the prosecution.  It is among 11 such cases the court has agreed to hear to sort out the constitutionality of the provision, including ones from Montgomery and Luzerne counties....

Whether or not the mandatory provisions added to the charges are upheld or thrown out, the cases against Hardy, Alenovitz, and the defendant in Bortner’s case are not going to disappear; they will still be charged with selling drugs. If convicted, they would also still be subject to possible prison terms — even as long as the mandatory sentences the prosecution is seeking. But the eventual sentence in those cases would be up to a judge, not a prosecutor.

May 3, 2014 in Blakely in the States, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, May 01, 2014

DEA head tells Senate DEA supports "scientific research efforts" concerning marijuana

As reported in this Washington Post article, headlined "DEA chief says marijuana-trafficking spiking in states near Colorado," the head of the Drug Enforcement Agency testified in Congress yesterday and expressed concerns about marijuana legalization and expressed support for mandatory minimum drug sentences:

Administrator Michele Leonhart said the DEA is troubled by the increase in marijuana trafficking in states surrounding Colorado and worries that the same phenomenon could be repeated around Washington state, where recreational marijuana is expected to be sold legally soon. In Kansas, she said, there has been a 61 percent increase in seizures of marijuana from Colorado.

Speaking to the Senate Judiciary Committee, Leonhart said the softening of attitudes nationwide about the risk of marijuana has confirmed some of the agency’s fears. “The trends are what us in law enforcement had expected would happen,” she said. “In 2012, 438,000 Americans were addicted to heroin. And 10 times that number were dependent on marijuana.”...

DEA officials have expressed frustration privately about the legalization of marijuana by Colorado and Washington state, where local officials consider the change an opportunity to generate tax revenue and boost tourism. But in January, James. L. Capra, the DEA’s chief of operations, called marijuana legalization at the state level “reckless and irresponsible,” and warned that the decriminalization movement would have dire consequences. “It scares us,” he said during a Senate hearing. “Every part of the world where this has been tried, it has failed time and time again.”...

On Wednesday, Leonhart spoke about why she thinks marijuana is dangerous. She said that marijuana-related emergency-room visits increased by 28 percent between 2007 and 2011 and that one in 15 high school seniors is a near-daily marijuana user. Since 2009, she said, more high school seniors have been smoking pot than smoking cigarettes....

Leonhart also spoke out in support of mandatory minimum sentencing for drug crimes, an issue Holder has highlighted recently as part of his initiative to reduce prison crowding and foster equity in criminal sentencing. Holder has instructed his 93 U.S. attorneys to use their discretion in charging low-level, nonviolent criminals with offenses that impose severe mandatory sentences.

Leonhart, in response to a question from Sen. Charles E. Grassley (R-Iowa), said: “Having been in law enforcement as an agent for 33 years [and] a Baltimore City police officer before that, I can tell you that for me and for the agents that work at the DEA, mandatory minimums have been very important to our investigations. We depend on those as a way to ensure that the right sentences equate the level of violator we are going after.”

Though the press coverage of the DEA chief's remarks suggest she is continuing the standard drug war posture of all modern administrations, her prepared testimony (available here) included thes three notable sentences about the DEA's support for medical marijuana research:

The National Institute on Drug Abuse (NIDA) and other components of the National Institutes of Health are conducting research to determine the possible role that active chemicals in marijuana, like tetrahydrocannabinol, cannabidiol, or other cannabinoids may play in treating autoimmune diseases, cancer, inflammation, pain, seizures, substance use disorders, and other psychiatric disorders.  DEA supports these, scientific research efforts by providing Schedule I research registrations to qualified researchers.  In fact, DEA has never denied a marijuana-related research application to anyone whose research protocol had been determined by the Department of Health and Human Services to be scientifically meritorious.

Perhaps these kinds of statements from DEA in support of "scientifically meritorious" medical marijuana research are not uncommon.  Still, these sentences struck me as notable and telling in the context of the DEA chief's many other anti-marijuana-legalization comments.

May 1, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, April 29, 2014

"Why innocent people plead guilty": Judge Jed Rakoff suggests "tens of thousands of innocent people" have been "coerced into pleading guilty"

Judge-Jed-Rakoff-400x400The title of this post is drawn from this report via USC News summarizing a provocative recent speech given by Judge Jed Rakoff (which a kind reader alerted me to). Here are excerpts:

Rakoff, who sits on the Federal District Court in Manhattan, N.Y., spoke recently at the USC Gould School of Law’s Neiman Sieroty Lecture on “Why Innocent People Plead Guilty.”...

“The criminal justice system is nothing like you see on TV — it has become a system of plea bargaining,” Rakoff said. Today, only 2 percent of cases in the federal system go to trial, and 4 percent of cases in the state system go before a jury. As a result, accepting a deal from prosecutors — despite one’s guilt or innocence — has become a common choice for individuals accused of a crime.

“Plea bargains have led many innocent people to take a deal,” Rakoff said. “People accused of crimes are often offered five years by prosecutors or face 20 to 30 years if they go to trial. … The prosecutor has the information, he has all the chips … and the defense lawyer has very, very little to work with. So it’s a system of prosecutor power and prosecutor discretion. I saw it in real life [as a criminal defense attorney], and I also know it in my work as a judge today.”

What can be done? Rakoff said prosecutors should have smaller roles in sentence bargaining and the mandatory minimum sentences should be eliminated. “But to be frank, I don’t think, politically, either of those things is going to happen. … When it comes right down to it, I think the public really wants these high penalties, and that’s because when these harsh penalties were imposed [in the 1980s], the crime rate went down.”

Another more controversial solution is to allow judicial involvement in the plea bargain process. A judge who is not involved in the case could take a first pass at an agreement, working with prosecutors and defense attorneys. “What I have in mind is a magistrate judge or a junior judge would get involved,” Rakoff said. “He would take offers from the prosecutor and the defense. … He would evaluate the case and propose a plea bargain if he thought that was appropriate, and he might, in appropriate cases, say to the prosecutor, ‘You don’t have a case and you should drop it.’ This would be very difficult for the judiciary; it’s not something I come to lightly, but I can’t think of any better solution to this problem.”

Until extraordinary action is taken, Rakoff said little will change. “We have hundreds, or thousands, or even tens of thousands of innocent people who are in prison, right now, for crimes they never committed because they were coerced into pleading guilty. There’s got to be a way to limit this.”

April 29, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (14) | TrackBack

Saturday, April 26, 2014

"Not just clemency, but smarter sentencing: Congress must act to make criminal justice more just"

The title of this post is the headline of this recent Washington Times op-ed authored by Craig DeRoche who is president of Justice Fellowship. Here are excerpts:

President Obama’s decision to grant clemency to a large number of nonviolent offenders in federal prison has ignited a much-needed national discussion on criminal justice reform, but voices on both sides are missing some key underlining problems.

Over the past several decades, Congress has passed disproportionate mandatory-minimum sentences for nonviolent offenses that infringe upon the moral and constitutional duties of judges to ensure fair and equitable justice.  As the head of a faith-based organization guided by the Christian values of redemption and transformation, I am called to advocate for a system that values compassion and mercy as necessary policy counterweights to justice.

Justice is giving someone what they deserve, based on the harm they have caused, whereas mercy is extending leniency that is undeserved.  Clemency was designed to be an instrument of mercy, while lawmaking is an exercise of justice.

If the aim of Mr. Obama’s clemency initiative is to correct unjust policy rather than extend mercy in specific cases, then it does nothing to address systematic problem plaguing America’s burgeoning criminal justice system; namely, the disproportionate and ineffective sentencing laws for nonviolent crimes that have led to a federal prison system at 38 percent above capacity.

This unacceptably high level of overcrowding is dangerous for both prison guards and prisoners.  It also diminishes the capacity for faith-based nonprofits such as ours to provide effective programming that helps transform prisoners into law-abiding citizens when they return to our communities.  Not to mention that paying for the skyrocketing federal prison population is essentially accomplished by theft from budgets that formerly went toward victims’ services, prosecutors, investigations and crime-prevention tools.

Some on the political right, in particular members of Congress, object to what Mr. Obama is proposing on the grounds that this is yet another executive action by an imperial president who they think is interfering with the constitutional prerogatives of lawmakers to make policy.

While there is no doubt that both the current and previous occupants of 1600 Pennsylvania Avenue have governed — sometimes questionably — through executive action, the Constitution clearly assigns the power of both clemency and pardons to the chief executive.  This is, in fact, a presidential prerogative inherited by way of ancient English constitutional law, which has always held the head of state to be the lead in executing prosecution, punishment and mercy.

The issue is not whether the president has the power to grant clemency, but rather whether Mr. Obama will overreach with that power in a way that undermines the long-term policy changes that can only be established through Congress’ lawmaking power.  Instead of using clemency as a blunt instrument to fix the broken policies and laws governing the criminal justice system, all three branches of government must work together to rebalance the scales of justice and restore a system that is no longer working for anyone....

Congress and the president have the opportunity to fulfill their constitutional obligations with two pieces of pending legislation that have attracted strong bipartisan support and affirm the growing consensus in support of reforming the criminal justice system.

One of the bills is the Smarter Sentencing Act, which has attracted the co-sponsorship of two polar opposites in the Senate: Mike Lee, a Tea Party Republican from Utah, and Richard J. Durbin, a liberal Illinois Democrat. The other is the Recidivism Reduction and Public Safety Act, co-sponsored by Sen. Sheldon Whitehouse, an unabashed liberal Democrat from Rhode Island, and John Cornyn, a Texas Republican conservative, which passed out of the Senate Judiciary Committee on a 15-2 vote.

This rare consensus should not be taken for granted. Discussions and hearings alone are lip service. If Congress wants to avoid an executive-dominated approach to the challenges facing our criminal justice system, it must take the lead in not only proposing, but passing, long-term solutions. All three branches of government working as our Founding Fathers envisioned will not only show the American public that our democracy still works, but that our society has become a more just one.

April 26, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0) | TrackBack