Tuesday, December 16, 2014

Notable NPR coverage of the "Human Casualties Of Mandatory Sentencing"

Download (3)I am pleased and intrigued to see that National Public Radio seems to be starting a deep dive into some of the personal stories surrounding the debate over federal mandatory minimum.  This introduction, headlined "From Judges To Inmates, Finding The Human Casualties Of Mandatory Sentencing," sets up the discussion this way:

This year, everyone from Attorney General Eric Holder to Tea Party Republicans in Congress has argued those stiff mandatory minimum prison sentences do more harm than good for thousands of drug offenders. Legislation to cut the tough-on-crime penalties has stalled on Capitol Hill, but it's likely to be reintroduced in 2015. Meanwhile, the White House and the Justice Department have taken the unprecedented step of asking for candidates who might win early release from prison through presidential pardons or commutations in the final years of the Obama presidency. That effort, known as Clemency Project 2014, is moving slowly.

Amid the backdrop of debate inside Washington and across the country, NPR decided to focus on the human toll of these mandatory prison sentences. We talked with judges who expressed tearful misgivings about sending people away for the rest of their lives for crimes that involved no violence and a modest amount of drugs. We found a newly-released inmate trying to reacquaint herself with her community in the Florida panhandle and rebuild ties with her grieving children after 17 years away from home. And we went inside a medium-security prison in New Jersey to find a lifer who says he deserves another chance. These people acknowledge they broke the law and accept the need for punishment. But they say their decades-long incarcerations cast a shadow that lingers over their families, damage that far outweighs the wrongs they did to put them in prison.

The series' first lengthy piece here is titled "Judge Regrets Harsh Human Toll Of Mandatory Minimum Sentences," has lots of good content and quotes from Judge John Gleeson and Professors Rachel Barkow and Bill Otis.

December 16, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, December 05, 2014

District Judge pushes federal prosecutors to back off extreme trial penalty sentence

As reported in this Reuters article, headlined "Prosecutors rethink convict's sentence after judge cites Holder," a federal judge earlier this week put some bite into the Attorney General's advocacy for reducing reliance on extremely long prison term by urging local federal prosecutors to reconsider an extreme sentence driven by application of mandatory minimum sentencing provisions. Here are the details of an interesting on-going sentencing story:

Prosecutors are reconsidering a 50-year sentence for a convicted robber and drug dealer, after a judge on Wednesday suggested they call Attorney General Eric Holder to ask him whether it was fair to "punish" a man for rejecting a plea deal and opting for a trial.

Randy Washington, 27, the Bronx man who faced the lengthy term after turning down a 10-year plea deal and getting convicted at trial, had been scheduled for sentencing in New York federal court on Wednesday.  But the hearing was adjourned so prosecutors could rework a deal carrying a shorter sentence, after U.S. District Judge Richard Sullivan repeated his criticism that the 50-year mandatory minimum sentence appeared to "punish" Washington for going to trial.

Sullivan even suggested prosecutors call Holder himself to ask if their actions comport with his recent directive cautioning prosecutors against routinely using the threat of harsher sentences to induce defendants to plead guilty.  "He won't look with pride on what you're doing here today," Sullivan said....

In September, Holder issued a memo advising prosecutors to avoid employing the prospect of longer mandatory minimum prison terms in plea talks.  Sullivan cited the memo Wednesday in criticizing the sentence for Washington, who was convicted of robbery, narcotics and related charges.

In July, Sullivan said the potential 50-year term was legal but "unnecessary and unjust" and in a rare move pushed Manhattan U.S. Attorney Preet Bharara's office to seek a reduced sentence. In response, prosecutors offered to drop a 10-year enhancement based on a prior felony conviction for Washington.

They separately offered Washington a new 25-year deal, which Washington rejected as it included an appellate waiver, a provision Sullivan questioned on Wednesday. "I'm not sure there's great consistency in the position that says, 'We agree that 50 years is too long, but it's too long only if you give up your appellate rights,'" he said.

After prosecutors consulted with Bharara himself, Assistant U.S. Attorney Telemachus Kasulis told Sullivan they would consider a 25-year deal without requiring Washington to waive all of his appellate rights. Sentencing was rescheduled for Dec. 12.

December 5, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Tuesday, December 02, 2014

SCOTUS hears argument on application of mandatory minimum sentencing provision in Whitfield

The Supreme Court has another notable criminal justice case on tap for oral argument this morning, and this effective SCOTUSblog preview, titled "Parsing “accompany” in the federal bank robbery statute," provides all the details and context.  Here is how the preview starts and ends: 

One part of the federal bank robbery statute, 18 U.S.C. § 2113(e), provides that a bank robber who “forces another person to accompany him” will receive a minimum sentence of ten years in prison, with a life sentence as a maximum.  [Tuesday December 2] the Court will hear oral arguments on how broadly this provision should apply — and in particular, whether it should apply to a North Carolina man who, while attempting to elude capture after a failed bank robbery, required the elderly woman in whose home he was hiding to move with him from one part of her home to another.  [This] hearing could also tell us whether the Justices regard this case as a run-of-the-mill statutory interpretation case or instead — like last month’s Yates v. United States and last Term’s Bond v. United States  — as the latest in a series of criminal cases in which overzealous federal prosecutors have overstepped their authority....

At last month’s argument in Yates, Justice Samuel Alito — who is normally the government’s most reliable ally in criminal cases — suggested to the lawyer arguing on behalf of the United States that, although the federal government had a variety of good arguments, it was nonetheless asking the Justices to endorse too expansive an interpretation of a federal law targeting the destruction of evidence.  Whitfield and his lawyers no doubt hope that the Justices will be equally dubious of the government’s interpretation in this case.  On the other hand, although Whitfield ultimately proved to be a bumbling bank robber, his conduct was unquestionably far more grave than John Yates’s destruction of some undersized fish: even if he only intended to hide from police after the failed bank robbery and never meant to harm [his elderly victim], she did die.  And that may be enough to make several of the Justices less skeptical, and significantly more serious, at Tuesday’s oral argument.

UPDATE: Via SCOTUSblog, I see that the transcript in Whitfield v. United States is now avaiable here

December 2, 2014 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Wednesday, November 19, 2014

Massachusetts special commission urges repeal of all drug mandatory minimums

DownloadAs reported in this local article, "a special commission studying the state's criminal justice system recommended eliminating mandatory minimum sentences for all drug offenses in Massachusetts."  Here is more about the commission's work and recommendations to date:

The commission also voted to recommend parole eligibility for all state prison sentences after an inmate has served at least two-thirds of the lower end of their sentence, except in cases of murder or manslaughter, and to maintain the current parole eligibility standards in houses of correction of half-time served on sentences of 60 days or more.

The commission, formed over two years ago, is trying to produce an in-progress report before the end of the year to inform Governor-elect Charlie Baker's administration. Baker, during his campaign for governor, voiced support for striking mandatory minimums for non-violent drug offenses as part of a broader approach to combat substance abuse.

The Special Commission to Study the Commonwealth's Criminal Justice System on Tuesday began debating legislative recommendations members plan to make to strengthen post-release supervision, improve prisoner reentry outcomes and reduce recidivism, and address overcrowding in the state's jails and prisons.

"Drug offenses are a huge reason we have so much overcrowding in the prison system," said Patty Garin, a criminal defense attorney and co-director of the Northeastern University Law School Prisoners Assistance Program. Garin and other commission members argued judges should be able to practice evidence-based sentencing, and suggested mandatory minimums disproportionately impact poorer communities and communities of color.

The 9-2 vote, with Attorney General Martha Coakley's representative abstaining, came over the objections of Cape and Islands District Attorney Michael O'Keefe, who sits on the commission. O'Keefe did not attend Tuesday's meeting, but submitted a letter expressing his opposition and later told the News Service that mandatory minimums are a tool prosecutors "use and use very effectively to stem the flow of drugs into communities."

"We utterly reject this notion that the criminal justice system is warehousing these non-violent drug offenders. That simply is not the case. People have to work extremely hard to get themselves into jail here in the Commonwealth of Massachusetts," O'Keefe said.

The commission was formed by Gov. Deval Patrick and the Legislature in 2012, and Undersecretary of Criminal Justice Sandra McCroom said she hopes to publish a report by the end of the year, though she acknowledged that all of the commission's work likely won't be completed by then. Patrick has also reconstituted the Sentencing Commission, which has met twice over the past two months and whose work could coincide with the criminal justice commission's recommendations....

Public Safety Secretary Andrea Cabral, who does not have a vote on the commission, said she would have carved out an exception from the mandatory minimum recommendation for trafficking crimes. While supporting enhanced drug treatment options, she said not all people convicted of drug offenses are struggling with addiction, and some are driven by money. "I think there should be a line drawn on trafficking," Cabral said.

Others on the commission, including Garin and Anthony Benedetti, chief counsel at the Committee for Public Counsel Services, argued that judges should be given discretion even in trafficking cases, expressing confidence that harsh sentences will be issues for those who deserve them. Worcester County Sheriff Lewis Evangelidis, a Republican, and a staff member representing Judiciary Committee Vice Chairman Rep. Chris Markey (D-Dartmouth) voted against the recommendation to do away with mandatory minimum sentences. "To me it's overreaching and too broad," said Evangelidis, a former state representative....

O'Keefe, the recent past president of the Massachusetts District Attorneys Association, expressed concern that if the Legislature were to eliminate mandatory minimum drug sentences, the courts would see defendants shopping for more lenient judges to avoid prison time. "Mandatory minimum sentences came into being in the first place to ensure relative uniformity in the sentencing of individuals distributing drugs," O'Keefe said....

Attorney General-elect Maura Healey has also backed ending mandatory minimums for non-violent drug offenses, and during her campaign called for expanding the use of drug courts.

November 19, 2014 in Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, November 18, 2014

Investigation reveals "mandatory" Minnesota gun sentence not imposed in majority of cases

635518507863570129-sent-5This interesting local investigative press report from Minnesota provides further evidence that mandatory minimum sentencing schemes are rarely applied consistently or evenly.  The article is headlined "Mandatory sentences not always the case for Minnesota gun crimes," and here are excerpts:

Hennepin County judges have come under fire recently for their sentencing habits. Several top Minneapolis leaders are claiming some judges are soft on gun crimes, allowing dangerous criminals back on the streets when they could be in prison. To separate fact from fiction, KARE 11 Investigators analyzed every sentence for every felony gun crime during the past three years. We found that judges do not hand down mandatory minimum sentences in the majority of gun crime cases.

Under Minnesota law there is a mandatory minimum amount of time criminals who use a gun should be sentenced to serve in prison. But our KARE 11 investigation found the amount of time they are sentenced to prison, if they get prison time at all, varies greatly from court to court and judge to judge....

Our analysis of sentencing data provided by the Minnesota Sentencing Guidelines Commission reveals in gun cases across all of Minnesota, judges give less than the mandatory minimum sentence 53% of the time. In Hennepin County, that jumps to 56%. Judge Richard Scherer, Judge Susan Robiner, Judge Mark Wernick, Judge Joseph Klein and Judge Daniel Moreno downward depart from mandatory sentencing in felony gun cases in more than two thirds of the cases they oversee. "And that's too much" said Hennepin County Attorney Mike Freeman.

Freeman's office routinely butts heads with district judges when it comes to sentencing in gun cases, especially when the conviction is for a felon being in possession of a handgun. On average in Minnesota, prosecutor's object to a judge's reduced sentence in gun cases only 12% of the time. But in Hennepin County, it happens in nearly 30% of gun cases. "I think the numbers speak for themselves. There's a different climate on this bench than there is elsewhere in this state," said Freeman.

But 4th District Chief Judge Peter Cahill disagrees. He says judges cannot be a rubber stamp for police and prosecutors, and the most important thing for them is to be fair and impartial. "We can't worry about stats," said Cahill. When KARE 11 Investigative reporter A.J. Lagoe asked Chief Judge Cahill if mandatory did not mean mandatory in Minnesota, Cahill responded, "not really." He says calling the state's mandatory minimum sentences mandatory is a "bit of a misnomer."

Cahill said the issue is very complex, and added "If you read the statute specifically, the legislature gave the court the ability to depart from the gun sentencing scheme." There is a section in Minnesota's minimum sentencing law that allows judges to disregard mandatory sentencing in gun cases if there are "substantial and compelling" reasons to do so. “If you read the statute specifically, the legislature gave the court the ability to depart from the gun sentencing scheme.”

Are there truly "substantial and compelling reasons" to hand down a lesser sentence in the majority of gun cases? It depends on who you ask. In the wake of a series of deadly summer shootings, Minneapolis's Police Chief Janee Harteau said, "we are arresting people who should have been kept in jail." Harteau and City Council President Barb Johnson began publically calling out Hennepin County judges for being soft on gun crimes and allowing dangerous criminals back on the street unnecessarily. "I am calling to them publicly this time to take gun crime seriously," said Johnson. "The penalties are there, impose them! When someone is arrested with a gun they need to do time!"

Minnesota sentencing statutes have a section referred to by the legal community as "mandatory mandatory sentences." If you're convicted a second time for a gun offense, judges are given no wiggle room. The law requires them to hand down at least the mandatory minimum. "Those are what we call hard 'mandatories' where there's no leeway for the court and we do impose those," said Chief Judge Cahill.

But KARE 11's investigation found that's not always the case. Take for example the rap sheet of Khayree Copeland. Copeland was busted in 2008 as a juvenile for possession of a short barreled shotgun. In 2011, now an adult, he was caught again with a gun. As a felon in possession, the mandatory minimum sentence he was facing was five years in prison. However Judge Robiner sentenced him to probation. Later that same year, Copeland was arrested again while carrying a handgun. His second offense as an adult, this time the law requires he get the "mandatory- mandatory" five years. But court records show Judge Richard Scherer gave him only four years in prison. "Members of my office protested both times and rightly so," said Freeman....

NOTE: While Hennepin judges see far and away more gun crime cases than any other jurisdiction, Carlton County judges are the most likely to cut a defendant a break. Judges there gave less than the mandatory minimum 100% of the time in the past three years.

November 18, 2014 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, November 12, 2014

"A Comprehensive Administrative Solution to the Armed Career Criminal Act Debacle"

The title of this post is the title of this notable and timely new piece authored by Avi Kupfer and available via SSRN. Here is the abstract:

For thirty years, the Armed Career Criminal Act (“ACCA”) has imposed a fifteen-year mandatory minimum sentence on those people convicted as felons in possession of a firearm or ammunition who have three prior convictions for a violent felony or serious drug offense.  Debate about the law has existed mainly within a larger discussion on the normative value of mandatory minimums. Assuming that the ACCA endures, however, administering it will continue to be a challenge.  The approach that courts use to determine whether past convictions qualify as ACCA predicate offenses creates ex ante uncertainty and the potential for intercourt disparities.  Furthermore, the Supreme Court's guidance on sentencing ACCA defendants has been unclear.  The resulting ambiguity creates inequity between defendants and fails to give them fair warning of the statute's scope.  This ambiguity also depletes the resources of courts, defendants, and prosecutors and prevents the statute from realizing its full potential of deterring violent crime.

This Note argues that rather than allowing this debacle to continue, Congress should delegate to a federal agency the task of compiling a binding list of state statutes that qualify as predicate offenses.  Under this approach, the states would assist the federal agency by providing initial guidance on their ambiguous statutes.  The U.S. Sentencing Commission has the manpower, subject familiarity, and institutional incentives to build and maintain the appendix, and state sentencing commissions would make ideal partners. In states that do not have sentencing commissions, comparable agencies and even properly incentivized attorneys general may be able to aid the federal Sentencing Commission. Congress should leverage this undertaking to resolve related definitional questions about the meaning of a violent crime in other areas of federal law.

November 12, 2014 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, November 03, 2014

Judge Rakoff highlights prosecutorial sentencing power in explaining "Why Innocent People Plead Guilty"

Download (2)Regular readers know that US District Judge Jed Rakoff has become a prominent regular critic of many aspects of the modern federal criminal justice system. In the latest issue of The New York Review of Books, Judge Rakoff provides an astute and effective review of how prosecutors have come to possess considerable unregulated sentencing powers in our modern system dominated by plea bargainiang.  His lengthy article's title, "Why Innocent People Plead Guilty," spotlights one key aspect of Judge Rakoff's concerns with the current system.  But, as these passages reveal, his central theme in this must-read piece is unregulated prosecutorial powers:

The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”  The Constitution further guarantees that at the trial, the accused will have the assistance of counsel, who can confront and cross-examine his accusers and present evidence on the accused’s behalf. He may be convicted only if an impartial jury of his peers is unanimously of the view that he is guilty beyond a reasonable doubt and so states, publicly, in its verdict.

The drama inherent in these guarantees is regularly portrayed in movies and television programs as an open battle played out in public before a judge and jury. But this is all a mirage.  In actuality, our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight.  The outcome is very largely determined by the prosecutor alone....

Until late last year, federal prosecutors were under orders from a series of attorney generals to charge the defendant with the most serious charges that could be proved — unless, of course, the defendant was willing to enter into a plea bargain.  If, however, the defendant wants to plead guilty, the prosecutor will offer him a considerably reduced charge — but only if the plea is agreed to promptly (thus saving the prosecutor valuable resources).  Otherwise, he will charge the maximum, and, while he will not close the door to any later plea bargain, it will be to a higher-level offense than the one offered at the outset of the case.

In this typical situation, the prosecutor has all the advantages. He knows a lot about the case (and, as noted, probably feels more confident about it than he should, since he has only heard from one side), whereas the defense lawyer knows very little.  Furthermore, the prosecutor controls the decision to charge the defendant with a crime. Indeed, the law of every US jurisdiction leaves this to the prosecutor’s unfettered discretion; and both the prosecutor and the defense lawyer know that the grand jury, which typically will hear from one side only, is highly likely to approve any charge the prosecutor recommends.

But what really puts the prosecutor in the driver’s seat is the fact that he — because of mandatory minimums, sentencing guidelines (which, though no longer mandatory in the federal system, are still widely followed by most judges), and simply his ability to shape whatever charges are brought — can effectively dictate the sentence by how he publicly describes the offense.  For example, the prosecutor can agree with the defense counsel in a federal narcotics case that, if there is a plea bargain, the defendant will only have to plead guilty to the personal sale of a few ounces of heroin, which carries no mandatory minimum and a guidelines range of less than two years; but if the defendant does not plead guilty, he will be charged with the drug conspiracy of which his sale was a small part, a conspiracy involving many kilograms of heroin, which could mean a ten-year mandatory minimum and a guidelines range of twenty years or more. Put another way, it is the prosecutor, not the judge, who effectively exercises the sentencing power, albeit cloaked as a charging decision.

Long-time readers know that this article gets to the heart of debates that Bill Otis and I have often had over the virtues and vices of mandatory minimum sentencing provisions. Because Judge Rakoff comes down on my side of this debate, few should be surprised to hear that I am a big fan of this article (though I wish Judge Rakoff had also discussed and lamented how acquitted conduct sentencing rules in the federal system further enhances prosecutors' charging/plea/sentencing powers).

Prior related posts on Judge Rakoff's commentaries:

November 3, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (13) | TrackBack

Saturday, October 25, 2014

Due to Alleyne, Kansas Supreme Court requires resentencing of murderer of abortion provider

As reported in this local article, headlined "Kansas Supreme Court vacates Roeder's 'Hard 50' sentence," the top court in the Sunflower State reversed a state mandatory minimum sentence in a high-profile murder case.  Here are the details:

The Kansas Supreme Court on Friday upheld the premeditated first-degree murder conviction of Scott Roeder, convicted in the 2009 church killing of Wichita abortion provider Dr. George Tiller, but vacated his “Hard 50” life sentence.

In ordering Roeder’s sentence remanded to the Sedgwick County District Court, the Kansas high court noted the 2013 U.S. Supreme Court decision that deemed a sentence of 50 years without the possibility of parole must be levied by a jury as opposed to the trial judge.

The Kansas court has vacated and remanded at least five other Hard 50 sentences in light of the U.S. Supreme Court decision in Alleyene vs. United States....

The court rejected all of Roeder’s other arguments in his bid for a new trial. Among those arguments was that Sedgwick County District Court Judge Warren Wilbert declined to allow Roeder to present a voluntary manslaughter defense based on the “imperfect defense of others” concept.  Roeder never denied at trial that he intended to shoot and kill Tiller in the vestibule of the doctor’s Wichita church before services on Sunday, May 31, 2009, but said he did so to prevent the abortion provider from taking the lives of unborn children.

Roeder, who testified that his anti-abortion activities began after his 1992 conversion to Christianity, said his frustration grew after Tiller was acquitted in 2009 of 19 charges brought by former Kansas Attorney General Phill Kline alleging that Tiller broke state law in performing late-term abortions. Roeder testified that upon learning of Tiller's acquittal, he believed that “nothing was being done” and the legal process had been exhausted....

But the district court ruled that Roeder wasn’t entitled to use a necessity defense, based in part on a previous Kansas Supreme Court ruling — also involving an anti-abortion case — that a person isn’t entitled to a such a defense if the activity they were trying to stop was a legal activity....

“Even for Roeder's professed purpose of stopping all abortions, not just illegal abortions, the Draconian measure of murder was not the only alternative,” Justice Lee Johnson wrote in the unanimous decision. The district court also ruled, and the Supreme Court agreed, that Roeder wasn’t entitled to a voluntary manslaughter defense because no imminent threat existed on that Sunday morning to justify the use of lethal force....

The Kansas Legislature, responding to the U.S. Supreme Court decision in Alleyene, rewrote the Kansas law on Hard 50 sentencing during a special session in 2013.  The new law says a jury must determine whether special circumstances exist to impose the increased minimum sentence.  But how such new sentencing will be conducted has yet to be determined, as none has yet been conducted in the cases where a Hard 50 sentence has been vacated.  Sedgwick County District Attorney Mark Bennett said Friday after the Roeder decision that he intended to conduct such a hearing.

The full 50+ page opinion of the Kansas Supreme Court in Kansas v. Roeder, No. 104,520 (Kansas Oct. 24, 2014), is available at this link.

October 25, 2014 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, October 20, 2014

New top Justice in Massachusetts urges repeal of mandatory minimums for low-level drug offenders

Download (2)I just came across this notable Boston Globe article discussing this notable speech delivered late last week by the new Chief Justice of Massachusetts Supreme Judicial Court.  Here is how the Globe article starts:

The head of the state’s highest court called for an end to mandatory minimum sentences for low-level drug offenders on Thursday, saying they interfere with judges’ discretion, disproportionately affect minorities, and fail to rehabilitate offenders.  

Citing the opioid-addiction crisis, Supreme Judicial Court Chief Justice Ralph D. Gants said the state needs to find better ways to treat addicts than sending them to jail. In 2013, 674 people died of opioid overdoses, compared with 338 in 2000.  “To those who favor the status quo in the so-called war on drugs, I ask: How well is the status quo working?” Gants said.

Gants, selected as chief justice by Governor Deval Patrick, called on the Legislature to pass laws to abolish mandatory sentencing.  His remarks, in his first State of the Judiciary speech, were part of a call for broader changes in the court system.  “We need our sentences not merely to punish and deter, but also to provide offenders with the supervision and the tools they will need to maximize the chance of success upon release and minimize the likelihood of recidivism,” he said.

Sworn in just 80 days ago, Gants said he will convene a group of judges, probation offices, prosecutors, and defense attorneys to study best practices to ensure what he called “individualized, evidence-based sentences.”  That means considering mental health or substance abuse treatment as well as time in prison.  Mandatory minimum sentences are automatic prison terms for those convicted of certain crimes, limiting judges’ discretion.

Gants’s proposal drew quick praise from members of the Massachusetts Bar Association, his audience at the association’s annual Bench-Bar Symposium in the John Adams Courthouse.  Marsha V. Kazarosian, president of the bar association, called Gants’s call to action “a gutsy move.”  She said there are “no cookie-cutter remedies” for drug defendants, and that an offender’s background should taken into consideration, and “that’s exactly what a judge is supposed to do.”

Anthony Benedetti, chief counsel for the Committee for Public Counsel Services, the state’s public defender agency agreed. “So many people involved in the criminal justice system have substance abuse and mental health issues,” Benedetti said.  “That’s the root of the problem, and this gets back to individual, evidence-based sentencing.”

The proposal was criticized by Essex District Attorney Jonathan Blodgett, head of the Massachusetts District Attorneys Association, who argued that the laws are designed to target drug traffickers, not merely drug users.  “The midst of an opiate overdose epidemic is not the time to make it easier for drug traffickers to avoid accountability and incarceration,” Blodgett said.  “An experienced trial judge should know that the drug defendants sentenced to incarceration are the ones who carry and use firearms, who flood communities with poison, and who commit the same distribution offenses over and over again.”

Supreme Judicial Court Chief Justice Gants' full speech is worth reading, and here is a notable excerpt from the text:

Mandatory minimum sentencing in drug cases has had a disparate impact upon racial and ethnic minorities.  In fiscal year 2013, 450 defendants were given mandatory minimum sentences on governing drug offenses. In that year, which is the most recent year for which data are available, racial and ethnic minorities comprised 32% of all convicted offenders, 55% of all those convicted of non-mandatory drug distribution offenses, and 75% of all those convicted of mandatory drug offenses.  I do not suggest that there is intentional discrimination, but the numbers do not lie about the disparate impact of mandatory minimum drug sentences.

The impact of mandatory minimum drug sentences is far greater than the number of defendants who are actually given mandatory sentences.  Prosecutors often will dismiss a drug charge that carries a mandatory minimum sentence in return for a plea to a non-mandatory offense with an agreed-upon sentence recommendation, and defendants often have little choice but to accept a sentencing recommendation higher than they think appropriate because the alternative is an even higher and even less appropriate mandatory minimum sentence.  For all practical purposes, when a defendant is charged with a drug offense with a mandatory minimum sentence, it is usually the prosecutor, not the judge, who sets the sentence.

I have great respect for the prosecutors in this Commonwealth, and for the exercise of prosecutorial discretion that comes with the job; I was a prosecutor myself for eight years.  But where there is a mandatory minimum sentence, a prosecutor's discretion to charge a defendant with a crime effectively includes the discretion to sentence a defendant for that crime.  And where drug sentences are effectively being set by prosecutors through mandatory minimum sentences, we cannot be confident that those sentences will be individualized, evidence-based sentences that will not only punish and deter, but also minimize the risk of recidivism by treating the root of the problem behind many drug offenses -- the problem of addiction.

October 20, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, October 09, 2014

New survey shows significant and growing support for "eliminating mandatory minimum prison sentences for nonviolent offenders"

As reported via this FAMM news release, which is headlined "New Poll Finds 77% of Americans Support Eliminating Mandatory Minimums for Non-Violent Offenses," there is new polling data suggesting that large and growing percentages of Americans favor mandatory minimum sentencing reform. Here are the basic details:

A new Reason-Rupe Public Opinion Survey finds that 77 percent of Americans support eliminating mandatory minimum sentences for non-violent drug offenses.  That number is up from 71 percent in December 2013, the last time Reason-Rupe polled on the question.  You can find the full survey results here (PDF); mandatory minimums are question 17. 

“Almost three decades have passed since the United States instituted harsh mandatory minimums for non-violent drug offenses.  During that time, countless lives have been ruined and countless families destroyed.  The American people have noticed, and they want no more of it,” said Julie Stewart, president and founder of Families Against Mandatory Minimums.

The poll question Reason-Rupe posed reads as follows: “Would you favor or oppose eliminating mandatory minimum prison sentences for nonviolent offenders so that judges have the ability to make sentencing decisions on a case-by-case basis?”

Seventy-seven percent of respondents said they favored eliminating mandatory minimums, while only 17 percent of respondents said they were opposed.  When Reason-Rupe asked the same question in December 2013, 71 percent of respondents were in favor of eliminating mandatory minimums, and 24 percent were opposed.

October 9, 2014 in Mandatory minimum sentencing statutes, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, October 07, 2014

Rolling Stone laments enduring casualties of drug war's mandatory minimums

ImagesRolling Stone magazine has just published this extensive "special report" titled "The Nation's Shame: The Injustice of Mandatory Minimums." The piece details the stories of seven notable low-level drug defendants serving high-level prison sentences. The piece has this subheading: "For decades, lawyers, scholars, and judges have criticized mandatory drug sentencing as oppressive and ineffective. Yet tens of thousands of nonviolent offenders continue to languish behind bars."  And here is a portion of the lead into the seven cases profiled:

Widely enacted in the Eighties and Nineties amid rising crime and racially coded political fearmongering, mandatory penalties — like minimum sentences triggered by drug weight, automatic sentencing enhancements, and three-strikes laws — have flooded state and federal prisons with nonviolent offenders.  Intended to ensure uniform discipline, these policies simply shifted discretion to prosecutors.  Judges lost latitude to tailor sanctions based on whether someone was a kingpin or courier, for example, while [Professor Mark] Osler says, prosecutors gained "a big hammer.  The easy way of doing things is to threaten people with a lot of time, and then plead them out," he says.  "But easy and justice don't go together very well."...

[T]he drug war is entrenched in decades of prison buildup. Between 1980 and 2010, state incarceration rates for drug crimes multiplied tenfold, while the federal drug prisoner population ballooned by a factor of 20.  Every year, taxpayers shell out $51 billion for drug war spending.  Meanwhile, 2.2 million people — or a quarter of the world's prisoners — crowd a system that exacts its harshest toll on the most vulnerable. Racism undermines the justice process from initial stop to sentence, and 60 percent of those incarcerated are people of color.  Rates of illiteracy, addiction, and mental illness are disproportionately high.

Amid utter congressional deadlock, sentencing reform is the only issue that has cut across partisan bickering to unite such normally irreconcilable voices as Rand Paul, Dick Durbin, Ted Cruz, Elizabeth Warren, Paul Ryan and John Conyers.  Yet the proposed Smarter Sentencing Act, which passed the Senate Judiciary Committee in January, has since run aground. The bill would halve key mandatory minimums, make relief under the Fair Sentencing Act available to 8,800 federal crack defendants locked up before 2010 and save $4 billion in the process.  More than 260,000 people have been imprisoned under federal drug mandatory minimums, and more will continue to cycle through the system — even as others are granted clemency — as long as reforms remain stalled.  At the state level, reforms without retroactive application strand drug defendants in prison even after the laws that put them there are reassessed as unjust.  The following seven cases epitomize the rigid regimes of the past, and the challenges involved in dismantling them.

October 7, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Friday, October 03, 2014

SCOTUS preview guest-post: "Measuring the Dangerousness of Felonies for Sentencing Purposes"

ThIn this post I lamented that the Supreme Court this week did not grant cert on any new sentencing cases.  But there is still some sentencing fun on the SCOTUS docket thanks to the Justices seemingly never having enough fun with interpretations of the Armed Career Criminal Act.  Helpfully, Professor Stephen Rushin, who filed in an amicus brief in the latest ACCA case, was kind enough to prepare for posting here a thoughtful preview of a case to be argued to the Justices in early November.

With kudos and thanks to Prof Rushin for this material, here is his preview:


What criminal offenses pose the greatest risk of injury to others? This is the empirical question at issue in a case, Johnson v. United States, before the U.S. Supreme Court this coming term. The case stems from the Armed Career Criminal Act (ACCA), which provides for punishment enhancements for offenders previously convicted of burglary, arson, extortion, use of explosives, and any other felony that presents “serious potential risk of injury to another.”

Since the passage of the ACCA, courts and litigants have struggled to determine which felonies pose such a “serious potential risk of injury to another.” The Court has interpreted this so-called residual clause of the ACCA to cover a range of felonies, including attempted burglary and fleeing from a police officer in a motor vehicle.    

In Johnson, the Court must now decide whether the residual clause also covers the possession of a short-barreled shotgun. So how dangerous is mere possession of an unlawful weapon? Professors Evan Lee, Eric Johnson, and I recently submitted an amicus brief in the Johnson case, arguing that the ACCA ought to cover these sorts of weapons law violations. 

At first, our argument may seem counter-intuitive. How, after all, can mere possession ever pose a “serious potential risk of injury to another?” Well that depends on how you define a “potential risk of injury.” Admittedly, offenses like weapons possession cannot, or usually do not, injure another person directly. But that does not mean that such offenses do not pose “serious potential risk of injury to another.” Congress’s use of the word “potential” in conjunction with the word “risk” suggests that a felony need not be the direct or exclusive source of an injury in order to qualify under the residual clause. We read the ACCA to mean that any offense that facilitates or is otherwise meaningfully associated with highly injury-prone offenses “poses a serious potential risk of injury.”

Of course, this raises the next obvious question—to what extent are weapons law violations, like possession of a short barreled shotgun, associated with injuries to victims? In previous ACCA cases, the Court has turned to a wide range of statistical data to measure the dangerousness of various felony offenses. In each case, the Court has attempted to find accurate statistical measures of how frequently a particular felony offense leads to injuries. The Court then compares this to the approximate injury frequency of injuries stemming from the offenses explicitly enumerated in the ACCA—burglary, arson, extortion, and use of explosives. 

This basic methodology makes perfect sense. Since Congress specifically enumerated a small number of offenses as “violent felonies” in the ACCA, the Court should presume that any offense of equal or greater dangerousness also warrants inclusion under the residual clause. But in employing this methodology, the Court has often relied on weak statistical data.

In entering into this ongoing debate, my coauthors and I make a simple recommendation to the Court in our amicus brief. We suggest that the Court should use the National Incident Based Reporting System (NIBRS) in measuring the dangerousness of offenses under the ACCA residual clause. For the unfamiliar, we have traditionally recorded crime data in the U.S. via the Uniform Crime Reports (UCR), which primarily record aggregate-level information on the prevalence of eight major criminal offenses—homicide, aggravated assault, rape, burglary, larceny, arson, and auto-theft. With the exception of homicides, these UCR records little to no details about the circumstances surrounding each offense. Recently, though, the FBI has begun collecting additional crime data through the database known as NIBRS. This system requests information from local law enforcement agencies on 46 different offense categories. NIBRS also groups together criminal offenses into incident-level data. This means that if an offender commits two different offenses as part of a single criminal incident, NIBRS groups these two offenses together for data analysis purposes. For example, suppose that an offender commits an assault in the course of committing a burglary. Traditionally, the UCR would register that event as two separate criminal events. By contrast, NIBRS groups together these two criminal offenses into a single incident. Police agencies that use NIBRS also report information on the circumstances of each criminal incident, including whether the incident resulted in any physical injuries to victims.

Of course NIBRS is not perfect. The NIBRS database is not perfectly representative of the United States. Although NIBRS greatly expands on the number of offense categories traditionally used in the UCR, it still cannot capture every single offense category. Nevertheless, NIBRS represents perhaps the best statistical resource available for measuring the “potential risk of injury” associated with felony offenses. For one thing, NIBRS represents the largest and most comprehensive database on injuries associated with criminal offenses. In addition, because NIBRS groups together multiple offenses into incidents, it allows researchers to measure more accurately the risk associated with criminal offenses. And NIBRS allows the Court to compare the dangerousness of different felony offenses accurately because it uses a consistent methodology across reporting jurisdictions.

So how do weapons law violations stack up compared to the explicitly enumerated felonies listed in the ACCA? In a previous study, Evan Lee, Lynn Addington, and I found that weapons law violations like possession of a short-barreled shotgun were more frequently associated with injuries than burglaries, arsons, or extortions. 5.36 percent of incidents involving weapons law violations in 2010 led to some type of physical injury to a victim, compared to just 4.41 percent of extortions, 1.11 percent of arsons, and 1.02 percent of burglaries.

Of course, these sorts of statistics alone cannot resolve the question before the Court. But we argue that this data cuts in favor of including weapons law violations under the ACCA residual clause.

October 3, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (5) | TrackBack

Monday, September 29, 2014

Notable new AG Holder memorandum on charging policies and plea negotiations

I learned over the weekend that last week Attorney General Eric Holder issued a short memo to DOJ lawyers to provide "Guidance Regarding § 851 Enhancements in Plea Negotiations."  This full one-page memo, which is dated September 24, 2014, can be downloaded below.  Here are its most notable sentences, with my emphasis added:

The Department provided more specific guidance for charging mandatory minimums and recidivist enhancements in drug cases in the August 12, 2013, "Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases."  That memorandum provides that prosecutors should decline to seek an enhancement pursuant to 21 U.S.C. § 851 unless the "defendant is involved in conduct that makes the case appropriate for severe sanctions," and sets forth factors that prosecutors should consider in making that determination. Whether a defendant is pleading guilty is not one of the factors enumerated in the charging policy. Prosecutors are encouraged to make the§ 851 determination at the time the case is charged, or as soon as possible thereafter.  An § 851 enhancement should not be used in plea negotiations for the sole or predominant purpose of inducing a defendant to plead guilty.  This is consistent with long-standing Department policy that "[c]harges should not be filed simply to exert leverage to induce a plea, nor should charges be abandoned to arrive at a plea bargain that does not reflect the seriousness of the defendant's conduct." "Department Policy on Charging and Sentencing," May 19, 2010.

While the fact that a defendant may or may not exercise his right to a jury trial should ordinarily not govern the determination of whether to file or forego an § 851 enhancement, certain circumstances -- such as new information about the defendant, a reassessment of the strength of the government's case, or recognition of cooperation -- may make it appropriate to forego or dismiss a previously filed § 851 information in connection with a guilty plea. A practice of routinely premising the decision to file an § 851 enhancement solely on whether a defendant is entering a guilty plea, however, is inappropriate and inconsistent with the spirit of the policy.

Download AG-Letter-Regarding-Enhancements-in-Plea-Negotiations

I am inclined to speculate that AG Holder felt a need to issue this short memo in part because of reports that some US Attorneys may have had a "practice of routinely premising the decision to file an § 851 enhancement solely on whether a defendant is entering a guilty plea."

September 29, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, September 23, 2014

Highlights from AG Holder's big speech today at the Brennan Center for Justice

As noted in this prior post and as detailed in this official Justice Department press release, Attorney General Eric Holder gave a big speech today in New York at the Brennan Center for Justice's conference on the topic of "Shifting Law Enforcement Goals to ​Reduce Mass Incarceration." Here are some highlights from a speech that all sentencing fans will want to read in full:

As you know, we gather this afternoon just over a year after the launch of the Justice Department’s Smart on Crime initiative — a series of important changes and commonsense reforms I set in motion last August.  Already, these changes are fundamentally shifting our response to certain crime challenges —particularly low-level, nonviolent drug offenses.  And this initiative is predicated on the notion that our work as prosecutors must be informed, and our criminal justice system continually improved, by the most effective and efficient strategies available.

After all — as I’ve often said — the United States will never be able to prosecute or incarcerate its way to becoming a safer nation.  We must never, and we will never, stop being vigilant against crime — and the conditions and choices that breed it.  But, for far too long — under well-intentioned policies designed to be “tough” on criminals — our system has perpetuated a destructive cycle of poverty, criminality, and incarceration that has trapped countless people and weakened entire communities — particularly communities of color....

Perhaps most troubling is the fact that this astonishing rise in incarceration — and the escalating costs it has imposed on our country, in terms both economic and human — have not measurably benefited our society.  We can all be proud of the progress that’s been made at reducing the crime rate over the past two decades — thanks to the tireless work of prosecutors and the bravery of law enforcement officials across America.  But statistics have shown — and all of us have seen — that high incarceration rates and longer-than-necessary prison terms have not played a significant role in materially improving public safety, reducing crime, or strengthening communities.

In fact, the opposite is often true.  Two weeks ago, the Washington Post reported that new analysis of crime data and incarceration rates — performed by the Pew Charitable Trusts, and covering the period of 1994 to 2012 — shows that states with the most significant drops in crime also saw reductions in their prison populations.  States that took drastic steps to reduce their prison populations — in many cases by percentages well into the double digits — saw crime go down as well.  And the one state — West Virginia — with the greatest increase in its incarceration rate actually experienced an uptick in crime.

As the Post makes clear: “To the extent that there is any trend here, it’s actually that states incarcerating people have seen smaller decreases in crime.”  And this has been borne out at the national level, as well.  Since President Obama took office, both overall crime and overall incarceration have decreased by approximately 10 percent.  This is the first time these two critical markers have declined together in more than 40 years. And although we have a great deal of work to do — and although, last year, some states continued to record growth in their prison populations — this is a signal achievement....

Over the past year, the federal prison population declined by roughly 4,800 inmates — the first decrease we’ve seen in many ‎decades.  Even more promising are new internal projections from the Bureau of Prisons. In a dramatic reversal of prior reports — which showed that the prison population would continue to grow, becoming more and more costly, overcrowded, and unsafe — taking into account our new policies and trends, our new projections anticipate that the number of federal inmates will fall by just over 2,000 in the next 12 months — and by almost 10,000 in the year after.‎

This is nothing less than historic.  To put these numbers in perspective, 10,000 inmates is the rough equivalent of the combined populations of six federal prisons, each filled to capacity.  Now, these projected decreases won’t result in any prison closures, because our system is operating at about 30 percent above capacity.  But my hope is that we’re witnessing the start of a trend that will only accelerate as our Smart on Crime changes take full effect.

Clearly, criminal justice reform is an idea whose time has come.  And thanks to a robust and growing national consensus — a consensus driven not by political ideology, but by the promising work that’s underway, and the efforts of leaders like Senators Patrick Leahy, Dick Durbin, Mike Lee, and Rand Paul — we are bringing about a paradigm shift, and witnessing a historic sea change, in the way our nation approaches these issues. ...

The Smart on Crime initiative is in many ways the ultimate expression of my trust in the abilities — and the judgment — of our attorneys on the front lines.  And although some have suggested that recent changes in charging and sentencing policies might somehow undermine their ability to induce cooperation from defendants in certain cases, today, I want to make it abundantly clear that nothing could be further from the truth.

As I know from experience — and as all veteran prosecutors and defense attorneys surely recognize — defendant cooperation depends on the certainty of swift and fair punishment, not on the length of a mandatory minimum sentence.  Like anyone old enough to remember the era before sentencing guidelines existed and mandatory minimums took full effect, I can testify to the fact that federal guidelines attempted to systematize the kinds of negotiations that were naturally taking place anyway.  As our U.S. Attorney for the Western District of Wisconsin, John Vaudreuil, often reminds his colleagues, even without the threat of mandatory minimums, it remains in the interests of all attorneys to serve as sound advocates for their clients — and for defendants to cooperate with the government in exchange for reduced sentences.

Far from impeding the work of our prosecutors, the sentencing reforms I’ve mandated have strengthened their discretion.  The contention that cooperation is somehow dependent on mandatory minimums is tied to a past at tension with the empirical present, and is plainly inconsistent with history, and with now known facts.  After all, as the Heritage Foundation observed earlier this year: “[t]he rate of cooperation in cases involving mandatory minimums is comparable to the average rate in all federal cases.”

Of course, as we refine our approach and reject the ineffective practice of calling for stringent sentences against those convicted of low-level, nonviolent crimes, we also need to refine the metrics we use to measure success; to evaluate the steps we’re taking; and to assess the effectiveness of new criminal justice priorities.  In the Smart on Crime era, it’s no longer adequate — or appropriate — to rely on outdated models that prize only enforcement, as quantified by numbers of prosecutions, convictions, and lengthy sentences, rather than taking a holistic view.  As the Brennan Center and many others have recognized — and as your landmark report on Federal Prosecution for the 21st Century makes crystal clear — it’s time to shift away from old metrics and embrace a more contemporary, and more comprehensive, view of what constitutes success....

Your concrete recommendations — that federal prosecutors should prioritize reducing violence, incarceration, and recidivism — are consistent with the aims of the Smart on Crime initiative.  The new metrics you propose — such as evaluating progress by assessing changes in local violent crime rates, numbers of federal prisoners initially found in particular districts, and changes in the three-year recidivism rate — lay out a promising roadmap for us to consider.  And my pledge to you today is that my colleagues and I will not merely carefully study this critical report — we will use it as a basis for discussion, and a vital resource to draw upon, as we engage in a far-reaching process to develop and codify new success measures — with the aim of cementing recent shifts in law and policy.

One of the key points underscored by your report — and emphasized under the Smart on Crime approach — is the need for the Justice Department to direct funding to help move the criminal justice field toward a fuller embrace of science and data. This is something that we — and especially our Office of Justice Programs and Bureau of Justice Assistance  — have taken very seriously throughout the Obama Administration.  And nowhere are these ideals more fully embodied — or more promisingly realized — than in our Justice Reinvestment Act and Second Chance Act programs....

Thanks to bipartisan support from Congress, funding for the Justice Reinvestment Initiative has more than quadrupled this year.  That, on its own, is an extraordinary indication of the power and importance of this work.  And this additional funding is allowing us to launch a new challenge grant program — designed to incentivize states to take the next major step in their reform efforts.

Today, I am pleased to announce that five states — Delaware, Georgia, Louisiana, Ohio, and Oregon — will be receiving these grants, which can be used to expand pre-trial reforms, to scale up swift and certain sanctions, to institute evidence-based parole practices, or a number of other options.  I am also pleased to announce that five states have been selected to receive new funding under the Second Chance Act to help reduce recidivism. Georgia, Illinois, Iowa, Minnesota, and Vermont will each be awarded $1 million to meet their recidivism reduction goals.  And each will be eligible for an additional $2 million over the next two years if they do so.

September 23, 2014 in Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, September 15, 2014

Effective commentary on Sixth Circuit panel upholding 15-year ACCA sentence for possession of shotgun shells

I am pleased to see that by LawProf Richard M. Re  now has posted on his (wonderfully titled) Re's Judicata blog some new critical thoughts about the Sixth Circuit panel ruling late last week in US v. Young, No. 13-5714 (6th Cir. Sept. 11, 2014) (available here).  Young rejected an Eighth Amendment claim by the defendant by ruling that a mandatory 15-year federal imprisonment term was not grossly disproportionate for a felon's possession of shotgun shells.  I first blogged about the Young ruling here, and I have not (yet) commented further because I was involved in the briefing and argument to the Sixth Circuit as an amicus representing NACDL.

Helpfully, Prof Re's extended post on Young, which is titled "A 'Shell' Game in the Sixth Circuit?", highlights some of my own deep concerns about the ruling. I recommend everyone check out the full post, which gets started this way:

In US v. Young, the Sixth Circuit recently affirmed a startlingly severe sentence for what seems like innocuous conduct, and the blogosphere has taken note.  As Eugene Volokh put it in his post title, the case involved a “15-year mandatory minimum federal sentence for possessing shotgun shells (no shotgun) almost 20 years after past felonies.”  The case might go to the Supreme Court on the Eighth Amendment question it raises.

Viewed from another angle, Young illustrates two reasons to lament the rarity of executive clemency.  First, whether Young’s sentence is just seems to depend on factors that weren’t pressed in court but that executive officials likely know about.  A robust clemency tradition would bring those factors to light.  Second, in the absence of executive clemency, the Sixth Circuit seems to have reached outside the proven record to do the executive’s job for it — and, in doing so, the court relied on allegations and innuendo instead of judicial findings.

Prior related posts on Young case:

September 15, 2014 in Examples of "over-punishment", Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Congressional Budget Office reports Smarter Sentencing Act would save federal taxpayers $4.36 billion

As reported in this new piece from The Hill, which is headlined "CBO: Drug sentencing reform saves $4B," this is now an official congressional estimate of just how much federal taxpayer monies would be saved if the Smarter Sentencing Act were to become law. Here are the basics:

Sens. Dick Durbin (D-Ill.) and Mike Lee (R-Utah) announced that their bill to reform nonviolent drug sentencing would reduce prison costs by more than $4 billion. “Making smart reforms to our drug sentencing laws will save the taxpayers billions of dollars,” Lee said on Monday.

On Monday, the Congressional Budget Office (CBO) reported that Durbin and Lee’s bill would save the federal government $4.36 billion in prison costs by giving federal judges more discretion in sentencing those convicted of non-violent drug offenses.

“Today’s CBO report proves that not only are mandatory minimum sentences for non-violent drug offenses often unfair, they are also fiscally irresponsible,” Durbin said. “By making the incremental, targeted changes that Senator Lee and I have proposed in our Smarter Sentencing Act, we can save taxpayers billions without jeopardizing public safety.”

This press release from Senator Mike Lee's office provides more context and details about potential SSA savings and the broad support the bill has already garnered:

CBO is the second government agency to conclude that the Durbin-Lee bill would produce billions of dollars in savings. The Department of Justice, which administers our federal prison system, has estimated that the bill would avoid prison costs of nearly $7.4 billion in 10 years and $24 billion in 20 years.

With federal prison populations skyrocketing and approximately half of the nation’s federal inmates serving sentences for drug offenses, the Smarter Sentencing Act would give federal judges more discretion in sentencing those convicted of non-violent drug offenses....

The bipartisan Smarter Sentencing Act is supported by faith leaders from the National Association of Evangelicals to the United Methodist Church. It is supported by groups and individuals including Heritage Action, Justice Fellowship of Prison Fellowship Ministries, Major Cities Chiefs Association, the ACLU, Grover Norquist, International Union of Police Associations, the National Organization of Black Law Enforcement Executives, the Leadership Conference on Civil and Human Rights, more than 100 former prosecutors and judges, the NAACP, Association of Prosecuting Attorneys, the Sentencing Project, American Conservative Union, Police Executive Research Forum (PERF), the Council of Prison Locals, Ralph Reed, Open Society Policy Center, American Correctional Association, the American Bar Association, National Black Prosecutors Association, the National Association of Criminal Defense Lawyers, National Task Force to End Sexual and Domestic Violence, Families Against Mandatory Minimums, Texas Public Policy Foundation, and the Constitution Project.

September 15, 2014 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, September 11, 2014

Sixth Circuit panel finds mandatory 15-year imprisonment term not grossly disproportionate for possession of shotgun shells

Because I filled an amicus brief on behalf of defendant Edward Young and participated in oral argument as well, I am much too close to the Eighth Amendment issue resolved against the defendant today in US v. Young, No. 13-5714 (6th Cir. Sept. 11, 2014) (available here), to provide any objective analysis and perspective.  And rather than provide my biased analysis in this post, let me for now be content to reprint the start the Sixth Circuit panel's per curiam ruling: 

Edward Young received a mandatory fifteen-year prison sentence for the crime of possessing seven shotgun shells in a drawer.  He came into possession of the shells while helping a neighbor sell her late husband’s possessions. When he eventually discovered them, he did not realize that his legal disability against possessing firearms — resulting from felonies committed some twenty years earlier — extended to ammunition. See 18 U.S.C. § 922(g)(1). Under the Armed Career Criminal Act (ACCA), Young received a mandatory fifteen-year sentence.

Young now asks this court to conclude that the ACCA, as applied to him, is unconstitutional under the Eighth Amendment because the gravity of his offense is so low as compared to the harshness of his sentence, and unconstitutional under the Fifth Amendment because he lacked notice.  Our precedent compels us to reject these claims and to affirm Young’s sentence.

To its credit, the per curiam decision in Young engages somewhat with some Eighth Amendment principles I sought to stress in my amicus efforts in this case, and Judge Stranch authored an extended concurrence discussing the policy arguments against mandatory minimums. But these aspects of the Young opinion do very little to salve my seething aggravation and frustration with this ruling.

A number of judges on the Sixth Circuit have a (somewhat justified) reputation for going to great lengths to bend and extend Eighth Amendment jurisprudence to block state efforts to execute brutal murderers after a state sentencing jury imposed the death penalty.  Consequently, I was hopeful (though not optimistic) that at least one member of a Sixth Circuit panel could and would conclude the modern Eighth Amendment places some substantive and judicially enforceable limits on extreme application of extreme federal mandatory minimum prison terms.  Apparently not.  Though surely not the intent of this ruling, I think the practical message is that one needs to murder someone with ammunition rather than just possess it illegally for the Sixth Circuit to be moved by an Eighth Amendment claim. (I was hoping to save a screed about this ruling for a future post, but obviously this is already a bit too raw for me to be able to hold my blog tongue.)

I am hopeful that the defendant will be interested in seeking en banc review and/or SCOTUS review, and thus I suspect the (obviously uphill) legal fight against this extreme sentence will continue. I plan to continue helping with that fight, and I would be eager to hear from others eager to help as well.

Prior related posts:

September 11, 2014 in Examples of "over-punishment", Gun policy and sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (25) | TrackBack

Tuesday, September 09, 2014

Split Third Circuit panel concludes Allenye error can be harmless

Sixth Amendment fans will want to find the time to check out the Third Circuit's notable opinion today in US v. Lewis, No. 10-2931 (3d Cir. Sept. 9, 2014) (available here).   The start of the majority opinion (per Judge Fisher) in Lewis suggest there is not too much of note in the case: 

This case requires us to determine the applicable standard of review for situations where a district court has imposed a mandatory minimum sentence based upon facts that were never charged in the indictment or found by a jury beyond a reasonable doubt. Such errors occur when a sentence is imposed in violation of the rule recently set forth in Alleyne v. United States, 133 S. Ct. 2151 (2013). Appellant Jermel Lewis challenges his sentence and contends that the failure of the indictment to charge an Alleyne element, combined with Alleyne error in jury instructions and at sentencing, is structural error.  We hold that Alleyne error of the sort alleged here is not structural and is instead subject to harmless or plain error analysis under Federal Rule of Criminal Procedure 52.  We conclude that the District Court’s error in Lewis’s case was harmless and will therefore affirm.

But the end of of the dissenting opinion (per Judge Rendell) in Lewis suggests there is a lot more to the matter:

Over a decade ago in Vazquez, I noted that the logic in that decision would mean that the “government can charge and convict a defendant of manslaughter, but sentence him for murder, and, as long as the government produced evidence at trial that would support that sentence, we would not notice or correct the error under [plain error review] and require resentencing in accordance with the jury’s verdict.”  271 F.3d at 130 (Rendell, J. dissenting).  Today the majority goes beyond even that dire prediction as it upholds a sentence for a crime different from that of conviction, under de novo review.  Under the majority’s reasoning, and contrary to Alleyne, a district court may now sentence a defendant pursuant to an improper mandatory minimum, in violation of the Sixth Amendment, and we would be obligated to uphold the sentence if we, an appellate court, find the evidence at trial to have been sufficient.  In short, today’s decision strikes at the very heart of the jury trial and grand jury protections afforded by the Constitution.

But perhaps I am wrong.  Perhaps we live in a brave new world where judges may determine what crimes a defendant has committed without regard to his indictment or jury verdict, and sentence him accordingly.  Or maybe Alleyne does not really mean what it says, when it proclaims brandishing and carrying offenses to be separate and distinct crimes, and that a defendant is entitled to be sentenced consistent with the jury’s findings.  But I take the Supreme Court at its word.  Until clearly instructed otherwise, I maintain that different crimes are just that, and district court judges cannot sentence a defendant to an uncharged crime simply because the evidence fits, nor can an appellate panel affirm such a sentence because they find that the evidence fits.  I adhere to the principle that both appellate and trial judges are required by the Constitution to respect, and sentence according to, a valid jury verdict, and on this basis I respectfully dissent.

September 9, 2014 in Blakely in Appellate Courts, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Recuenco and review of Blakely error, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, September 03, 2014

"Life sentence for buying marijuana?"

CA6K4VHLThe question and title of this post comes from the headline of this new CNN commentary by Vanita Gupta, who is deputy legal director at the ACLU.  An editorial note at the start of this piece provides this background: "CNN's David Mattingly reports on the case of a Missouri man sentenced to life in prison for purchasing marijuana Wednesday at 7 p.m. on Erin Burnett OutFront."  And this companion piece, headlined "The price of pot," provides this additional preview:

Penalties for the personal use of marijuana vary across the country, the most severe standing in stark contrast as more states legalize medical and even recreational use. Possession of an ounce of pot in Colorado is penalty-free, but if you’re in Kansas, that same ounce could land you a year in jail and a $2,500 fine.

This week on "Erin Burnett OutFront," CNN's David Mattingly investigates two marijuana cases involving stiff penalties, including one man spending life in prison on pot charges. "OutFront" asks: Does the punishment fit the crime?  Watch the two-part "OutFront" investigation Wednesday and Thursday, September 3-4 at 7 p.m. ET.

  And now here are now excerpts from the commentary by  Vanita Gupta: 

Clearly something is broken when a Missouri man named Jeff Mizanskey can be sentenced to die in prison for purchasing seven pounds of marijuana. With two nonviolent marijuana convictions already on his record, Jeff received life without parole under Missouri's three strikes law.

The punishment of growing old and dying behind bars for offenses like Mizanskey's is extreme, tragic, and inhumane. This should outrage us, but it should not surprise us. This country has spent 40 years relentlessly ratcheting up the number of people going to prison and dramatically expanding the time we hold them there. We've spent decades criminalizing people with drug dependency, passing extreme sentencing laws, and waging a war on drugs that has not diminished drug use. Small wonder, then, that even less serious crimes like Mizanskey's marijuana purchase result in costly and cruel sentences....

While many of the lawmakers who passed harsh sentencing laws thought they were doing the right thing, the results are now in: This approach has devastated families and communities, generated high recidivism rates, drained state budgets from more productive investments, and has reinforced generations of poverty and disadvantage that disproportionately fall on communities of color. There were ways to hold Mizanskey and others like him accountable for their actions short of sentencing them to die in prison.

We can and must do better. It's time for states to end the costly criminalization of marijuana and recalibrate sentencing laws so that the punishment actually fits the crime as opposed to a politician's reelection agenda. Public attitudes toward marijuana are rapidly evolving, and a Gallup poll last year found for the first time that a majority of Americans now favor legalization as a better course than criminalization.

Unfortunately, laws and police practices that enforce them are out of step with public opinion. Nationally, nearly half of all drug arrests are for marijuana offenses. At least one person is arrested for marijuana possession every hour in Mizanskey's home state of Missouri, which also wasted nearly $50 million on marijuana enforcement in 2010. Although black people and white people use marijuana at about the same rate, a black person in Missouri was 2.6 times more likely to be arrested for having marijuana than a white person.

The solution is clear. Instead of taxpayers spending millions of dollars on this unnecessary enforcement and keeping folks like Mizanskey in prison for the rest of their lives, states could follow Colorado and Washington by taxing and regulating marijuana and investing saved enforcement dollars in education, substance abuse treatment, and prevention and other health care.

But even if states are not ready to expand their tax base in this manner, state lawmakers need to take a good, hard look at their sentencing laws and eliminate penalties that far outweigh the crimes they seek to punish. It is tempting to think that Mizanskey's case is an anomaly, but that is not the case.

According to a report released by the American Civil Liberties Union last year, there are currently 3,278 people serving life sentences without parole for nonviolent crimes, including marijuana offenses. Many of them, like Mizanskey, are there because of three-strikes laws and mandatory sentencing regimes. These policies force judges to impose excessively cruel sentences and forbid corrections officials from granting early release or parole, even despite exemplary records in prison.

The good news is that there is a growing bipartisan consensus all over the country that our criminal justice system has gone too far and that we can and must safely downsize our prison population. Missouri recently reformed the three strikes law that sentenced Jeff to prison for life. If he were sentenced today, he could have received a significantly shorter sentence and be eligible for parole.

As states like Missouri make these kinds of reforms, we must not forget the people who languish behind bars because of old sentencing laws now thought to be excessive. Smart reforms that correct past injustice should be made retroactive, and governors must use their clemency powers more frequently. Missouri Gov. Jay Nixon should grant clemency to Jeff Mizanskey. Public safety is not served by having him die in prison.

September 3, 2014 in Drug Offense Sentencing, Examples of "over-punishment", Mandatory minimum sentencing statutes, Offense Characteristics, Pot Prohibition Issues, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Wednesday, August 20, 2014

Pennsylvania Supreme Court declares $75K mandatory fine constitutionally excessive for $200 theft

Images (2)Thanks to How Appealing, I just saw this fascinating new unanimous ruling by the Supreme Court of Pennsylvania in Pennsylvania v. Eisenberg, No. (Pa. Aug. 19, 2014) (available here). Here is how the lengthy opinion gets started:

The controlling issue in this unusual direct appeal from a conviction arising under the Gaming Act is whether imposition of a mandatory minimum fine of $75,000 for a conviction of a first-degree misdemeanor theft of $200 violates the prohibition of Article I, Section 13 of the Pennsylvania Constitution against excessive fines.  For the reasons set forth below, we conclude that, under the circumstances, the fine imposed indeed is unconstitutionally excessive. Accordingly, we vacate that portion of the judgment of sentence involving the mandatory fine and we remand to the trial court to determine, in its discretion, the appropriate fine to be imposed commensurate with appellant’s offense.

The full ruling is worth a full read by anyone interested in constitutional review of sentences, especially because the ruling turns in part on the fact that the punishment here involved a statutory mandatory term.  Here is an excerpt from the heart of the opinion's analysis:

In our view, the fine here, when measured against the conduct triggering the punishment, and the lack of discretion afforded the trial court, is constitutionally excessive. Simply put, appellant, who had no prior record, stole $200 from his employer, which happened to be a casino.  There was no violence involved; there was apparently no grand scheme involved to defraud either the casino or its patrons.  Employee thefts are unfortunately common; as noted, appellant’s conduct, if charged under the Crimes Code, exposed him to a maximum possible fine of $10,000. Instead, because appellant’s theft occurred at a casino, the trial court had no discretion, under the Gaming Act, but to impose a minimum fine of $75,000 – an amount that was 375 times the amount of the theft....

The Commonwealth argues that the mandatory fine is not constitutionally excessive because a fine serves both to punish and to deter, and in the Legislature’s judgment, the amount here was necessary to accomplish both in light of the public perception of the gaming industry and the significant amount of money exchanged in casinos.  We acknowledge that all fines serve the twin purposes of punishment and deterrence.  At the same time, however, we note that the extension of the mandatory fine to this offense was adopted in 2010, and it was accompanied by no separate legislative statement of purpose. The only statement of purpose is that attending the initial Gaming Act legislation, i.e., the general statement of purpose to protect the public through regulation of the gaming industry.  The Commonwealth cites nothing in the later legislation, its legislative history, or logic to explain the sheer amount of this fine for this particular added offense, and the reason for making the offense subject to a mandatory fine....

[T]he Commonwealth’s reliance on cases in which courts have upheld substantial criminal administrative penalties in light of the Legislature’s dual objectives of punishment and deterrence, is misplaced. In those cases, the fines were tailored, scaled, and in the strictest sense, calculated to their offenses.  It is undoubtedly within the Legislature’s discretion to categorize theft from a casino differently than other theft crimes in Pennsylvania, and, in turn, to fashion different penalties.  However, the prohibition against excessive fines under Article I, Section 13 requires that the Legislature not lose sight of the fact that fines must be reasonably proportionate to the crimes which occasion them.  We hold that, as imposed here, the mandatory fine clearly, palpably and plainly violates the Pennsylvania Constitution.

August 20, 2014 in Fines, Restitution and Other Economic Sanctions, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (9) | TrackBack

Saturday, August 16, 2014

Texas Gov Rick Perry facing two felony charges carrying significant mandatory minimum prison terms

I know very little about Texas criminal laws and procedures, and I know even less about the political and legal in-fighting that appears to have resulted in yesterday's remarkable indictment of Texas Gov Rick Perry on two state felony charges.  But I know enough about mandatory minimum sentencing provisions to know Gov Perry might be looking a significant prison time if he is convicted on either of these charges.  This lengthy Dallas Morning News article, headlined "Gov. Rick Perry indicted on charges of abuse of power, coercion," provides some of the political and legal backstory (as well as a link to a copy of the two-page indictment): 

Republican Rick Perry, becoming the first Texas governor indicted in almost a century, must spend the final five months of his historically long tenure fighting against felony charges and for his political future. A Travis County grand jury on Friday charged Perry with two felony counts, abuse of official capacity and coercion of a public servant, after he vetoed funding for a county office that investigates public corruption.

Special prosecutor Michael McCrum of San Antonio said he felt confident in the case against Perry and was “ready to go forward.” Perry made no statement, but his general counsel, Mary Anne Wiley, said he was exercising his rights and power as governor. She predicted he would beat the charges. “The veto in question was made in accordance with the veto authority afforded to every governor under the Texas Constitution. We will continue to aggressively defend the governor’s lawful and constitutional action, and believe we will ultimately prevail,” she said.

The charges set off a political earthquake in the capital city.  Democrats said the indictment underscores Perry’s insider dealing and he should step down.  Republicans called it a partisan ploy to derail him, especially aimed at his second presidential run that had been gathering momentum.

The case stems from Perry's erasing $7.5 million in state funding last year for the Travis County Public Integrity Unit. He did so after District Attorney Rosemary Lehmberg, a Democrat, rejected his calls to resign after her drunken driving conviction.

Perry could appear as early as next week to face arraignment on the charges. Abuse of official capacity is a first-degree felony with punishment ranging from five to 99 years in prison, and coercion of a public servant is a third-degree felony with a penalty of two to 10 years.

In announcing the indictment, McCrum said he recognized the importance of the issues at stake. “I took into account the fact that we’re talking about the governor of a state and the governor of the state of Texas, which we all love,” he said. “Obviously, that carries a level of importance. But when it gets down to it, the law is the law.”...

The allegations of criminal wrongdoing were first filed by Craig McDonald, director of the nonprofit campaign watchdog group Texans for Public Justice. McDonald has maintained that using veto threats to try to make another elected official leave was gross abuse of office. “The grand jury decided that Perry’s bullying crossed the line into lawbreaking,” he said Friday. “Any governor under felony indictment ought to consider stepping aside.”

State Republican Party chairman Steve Munisteri decried the prosecution as politically motivated. “Most people scratch their heads and wonder why we’re spending taxpayer dollars to try to put somebody in jail for saying that they didn’t feel it was appropriate to fund a unit where the person in charge was acting in a despicable way,” Munisteri said....

A judge from conservative Williamson County, a suburban area north of Austin, appointed McCrum to look into the case. The current grand jury has been studying the charges since April.  McCrum worked for 10 years as a federal prosecutor, starting during President George H.W. Bush’s administration. He’s now in private practice, specializing in white-collar crimes....

McCrum, a former federal prosecutor, said he interviewed up to 40 people as part of his investigation, reviewed hundreds of documents and read dozens of applicable law cases. He dismissed the notion that politics played any part. “That did not go into my consideration whatsoever,” he said.  Asked why he never called Perry before the grand jury, McCrum said, “That’s prosecutorial discretion that I had.”

Of course, what makes this story so very notable from a criminal justice perspective is the extraordinary power and discretion that the special prosecutor had in developing these charges and the extraordinary impact that mere an indictment seems likely to have on Gov Perry professional and personal life.

Regular readers know that former commentor Bill Otis and I often went back-and-forth in the comments concerning my concerns about (and his support for) federal prosecutors have very broad, unchecked, hidden and essentially unreviewable charging and bargaining powers. For this reason, I was especially interested to see that Bill now already has these two new posts up over at Crime and Consequences assailing the charging decision by the (former federal) prosecutor in the Perry case: The World's Most Absurd Indictment and Politics & Prosecution, a Toxic Brew.  I am hopeful (though not really optimistic) that the Perry indictment might help Bill better appreciate why I have such deep concerns about prosecutorial discretion as exercised by federal prosecutors (especially when their powers are functionally increased by severe mandatory minimum sentencing provisions).

August 16, 2014 in Celebrity sentencings, Mandatory minimum sentencing statutes, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (30) | TrackBack

Thursday, August 14, 2014

US Sentencing Commission finalizes its policy priorities for coming year

As detailed in this official press release, the "United States Sentencing Commission today unanimously approved its list of priorities for the coming year, including consideration of federal sentences for economic crimes and continued work on addressing concerns with mandatory minimum penalties." Here is more from the release:

The Commission once again set as its top priority continuing to work with Congress to implement the recommendations in its 2011 report on federal mandatory minimum penalties, which included recommendations that Congress reduce the severity and scope of some mandatory minimum penalties and consider expanding the “safety valve” statute which exempts certain low-level non-violent offenders from mandatory minimum penalties....

The Commission also set out its intention to consider potential changes to the guidelines resulting from its multi-year review of federal sentences for economic crimes. “For the past several years, we have been reviewing data and listening to key stakeholders to try to determine whether changes are needed in the way fraud offenses are sentenced in the federal system, particularly in fraud on the market cases,” Saris said.  “We look forward to hearing more this year from judges, experts, victims, and other stakeholders on these issues and deciding whether there are ways the economic crime guidelines could work better.”

The Commission will continue to work on multi-year projects to study recidivism comprehensively, including an examination of the use of risk assessment tools in the criminal justice system.  The Commission will also consider whether any amendments to the guidelines or statutory changes are appropriate to facilitate consistent and appropriate use of key sentencing terms including “crime of violence” and “drug trafficking offense.”

The Commission is undertaking new efforts this year to study whether changes are needed in the guidelines applicable to immigration offenses and whether structural changes to make the guidelines simpler are appropriate, as well as reviewing the availability of alternatives to incarceration, among other issues.

The official list of USSC priorities is available at this link, and I found these items especially noteworthy (in addition to the ones noted above):

(4) Implementation of the directive to the Commission in section 10 of the Fair Sentencing Act of 2010, Pub. L. 111–220 (enacted August 3, 2010) (requiring the Commission, not later than 5 years after enactment, to “study and submit to Congress a report regarding the 3 impact of the changes in Federal sentencing law under this Act and the amendments made by this Act”)....

(10) Beginning a multi-year effort to simplify the operation of the guidelines, including an examination of (A) the overall structure of the guidelines post-Booker, (B) cross references in the Guidelines Manual, (C) the use of relevant conduct in offenses involving multiple participants, (D) the use of acquitted conduct in applying the guidelines, and (E) the use of departures.

August 14, 2014 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Sunday, August 03, 2014

Significant AG Holder comments asserting severe rigid sentences are not needed to induce cooperation

Attorney General Eric Holder's significant speech at the National Association of Criminal Defense Lawyers' Annual Meeting made headlines mostly due to his expression of concern about the use of risk assessment instruments in initial sentencing determinations (as previously discussed here).  I will discuss AG Holder's nuanced comments on this front in some future posts.  

Before discussing the use of risk assessment instruments in initial sentencing determinations, I first want to recommend that everyone read all of AG Holder's NACDL speech, which is available here, because it includes a number of notable passages addressing a number of notable sentencing topics.  Of particular note, these paragraphs seek to debunk the oft-heard statements that reform of mandatory minimum sentencing provisions could prevent prosecutors from securing needed cooperation from defendants:

[T]he Smart on Crime initiative has led us to revise the Justice Department’s charging policies with regard to mandatory minimum sentences for certain federal, drug-related crimes — so that sentences will be determined based on the facts, the law, and the conduct at issue in each individual case.  This means that the toughest penalties will now be reserved for the most serious criminals.  Over the last few months — with the Department’s urging — the U.S. Sentencing Commission has taken additional steps to codify this approach, amending federal sentencing guidelines for low-level drug trafficking crimes to reduce the average sentence by nearly 18 percent.  Going forward, these new guidelines will impact almost 70 percent of people who are convicted of these offenses. And last month, the Commission voted to allow judges to apply these revised guidelines retroactively in cases where reductions are warranted.

Now, some have suggested that these modest changes might somehow undermine the ability of law enforcement and prosecutors to induce cooperation from defendants in federal drug cases.  But the reality is that nothing could be further from the truth.

Like anyone who served as a prosecutor in the days before sentencing guidelines existed and mandatory minimums took effect, I know from experience that defendant cooperation depends on the certainty of swift and fair punishment, not on the disproportionate length of a mandatory minimum sentence.  As veteran prosecutors and defense attorneys surely recall — and as our U.S. Attorney for the Western District of Wisconsin, John Vaudreuil, has often reminded his colleagues — sentencing guidelines essentially systematized the kinds of negotiations that routinely took place in cases where defendants cooperated with the government in exchange for reduced sentences.  With or without the threat of a mandatory minimum, it remains in the interest of these defendants to cooperate.  It remains in the mutual interest of defense attorneys and prosecutors to engage in these discussions. And any suggestion that defendant cooperation is somehow dependent on mandatory minimums is plainly inconsistent with the facts and with history.

Far from impeding the work of federal prosecutors, these sentencing reforms that I have mandated represent the ultimate expression of confidence in their judgment and discretion.  That’s why I’ve called on Congress to expand upon and further institutionalize the changes we’ve put in place — so we can better promote public safety, deterrence, and rehabilitation while saving billions of dollars and reducing our overreliance on incarceration.

August 3, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, August 01, 2014

Spotlighting that nearly all GOP Prez hopefuls are talking up sentencing reform

I have previously questioned the assertion that significant federal sentencing reform is inevitable, and the failure of the current Congress to make serious progress on the Smarter Sentencing Act or other notable pending federal sentencing reform proposals has reinforced my generally pessimistic perspective.  But this effective new article from the Washington Examiner, headlined "2016 contenders are lining up behind sentencing reform --- except this one Tea Partier," provides further reason to be optimistic that federal sentencing reform momentum will continue to pick up steam in the months ahead.  Here are highlights:

Sen. Marco Rubio hasn’t hammered out a firm position on mandatory minimum sentencing laws yet.  A year ago, that would have been perfectly normal for a Republican senator and rumored presidential contender.  But over the last months, most of the potential Republican nominees have voiced support for policy changes that historically might have gotten them the toxic “soft on crime” label.  These days, though, backing prison reform lets Republicans simultaneously resurrect compassionate conservatism and reach out to voters who wouldn’t typically find much to love from the GOP.

Rep. Paul Ryan is one of the latest potential presidential candidates to tout mandatory minimum sentencing reform as part of a conservative strategy to reduce poverty.... [H]e has debuted a new anti-poverty agenda that includes support for the Smarter Sentencing Act, a bill with a Senate version co-sponsored by Senate Majority Whip Dick Durbin, D-Ill., and Tea Party favorite Sen. Mike Lee, R-Utah, and a House version from Rep. Bobby Scott, D-Va., and Raul Labrador, R-Idaho.  That bill would shorten some of the mandatory minimum sentence lengths and also would expand the “safety valve” that keeps some non-violent drug offenders from facing mandatory sentences.

“It would give judges more discretion with low-risk, non-violent offenders,” Ryan said in a speech at conservative think tank American Enterprise Institute.  “All we’re saying is, they don’t have to give the maximum sentence every time.  There’s no reason to lock someone up any longer than necessary.”

Ryan is the latest in a string of potential presidential contenders to get on board with prison reform.  But it’s likely the state of criminal justice reform would look different without Texas Gov. Rick Perry. In 2007, the Texas legislature adopted a budget designed to reduce the number of people incarcerated and spend more money on treatment. Since then, the state has closed three adult and six juvenile prisons, crime rates have reached levels as low as in the 1960s, and recidivism rates have dipped.

Perry has used his national platform to tout this reform — at a Conservative Political Action Conference (panel with Americans for Tax Reform President Grover Norquist, for instance, he said real conservatives should look to shut down prisons and save money — and other states have adopted reforms following the Lone Star State model.

Sen. Rand Paul, another 2016 favorite, has been one of prison reform’s most vocal boosters.  In an April 2013 speech at Howard University — a speech that got mixed reviews — he drew plaudits for criticizing mandatory minimum sentencing laws.  “Our federal mandatory minimum sentences are simply heavy-handed and arbitrary,” he said, per CNS News. “They can affect anyone at any time, though they disproportionately affect those without the means to fight them. We should stand and loudly proclaim enough’s enough.”

That speech took prison reform one step closer to becoming a national conservative issue, rather than just the purview of state-level think tank wonks and back-room chats among social conservative leaders.

And, of course, New Jersey Gov. Chris Christie addressed the issue in his second inaugural, connecting support for prison reform to his pro-life convictions.

None of this support means that legislation like the Smarter Sentencing Act has good odds in this Congress.  Brian Phillips, a spokesman for Lee, said that since House Majority Leader Eric Cantor’s astounding primary loss, House Republicans have become more gun-shy about any sort of politically complicated reform measures.  And GovTrack.us gives that bill a 39 percent chance of being enacted.

But that doesn’t mean conservative appetite for prison reform will abate.  Molly Gill, government affairs counsel for Families Against Mandatory Minimums, said interest in the issue is growing. “ It can’t go away,” she said. “If Congress doesn’t fix it now, it’s still going to be a problem next year. It’s going to be a problem at the Department [of Justice], it’s going to be a problem in appropriations committees, it’s going to be a problem for the Commerce, Justice and Finance subcommittees when they’re doing appropriations bills — because there is no more money coming, and we’re just going to keep stuffing people into overcrowded prisons.”...

For now, most of the Senate Republicans publicly eyeing 2016 bids have co-sponsored Lee and Durbin’s Smarter Sentencing Act — except Rubio, who said his office is examining it. “I haven’t looked at the details of it yet and taken a formal position,” he said. “We study those things carefully.”

Some recent and older related posts:

August 1, 2014 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, July 28, 2014

US District Judge Gleeson prods prosecutors to undo stacked gun counts and then praises effort to do justice

VACATEweb-master675Regular readers are likely familiar with the remarkable series of opinions issued by US District Judge John Gleeson in which he has forcefully expressed deep concerns with how federal prosecutors sometimes exercise their charging and bargaining powers in the application of mandatory minimum sentencing provisions. But, as reported in this New York Times piece, headlined "Citing Fairness, U.S. Judge Acts to Undo a Sentence He Was Forced to Impose," Judge Gleeson's latest opinion discusses how federal prosecutors ultimately aided his efforts to undo an extreme mandatory minimum sentence. Here are the basics:

Francois Holloway has spent nearly two decades of a 57-year sentence in a federal prison, for serious crimes that no one disputes he committed. There were armed carjackings, and his participation in an illegal chop shop, where stolen cars would be dismantled and sold for parts. But the fairness of the mandatory sentence has been a matter of dispute, not only for Mr. Holloway, but also for a surprising and most effective advocate: the trial judge, John Gleeson.

As Mr. Holloway filed one motion after another trying to get his sentence and his case re-evaluated, Judge Gleeson, of Federal District Court in Brooklyn, began to speak out against those mandatory sentences that he believed were unduly harsh. Mr. Holloway’s 57-year term was more than twice the average sentence in the district for murder in 1996, the year he was sentenced.

More recently, Judge Gleeson began his own campaign on Mr. Holloway’s behalf, writing to Loretta E. Lynch, who is the United States attorney for the Eastern District of New York, to request that she vacate two of Mr. Holloway’s convictions. The payoff from Judge Gleeson’s efforts will be apparent on Tuesday in a highly unusual hearing, when the judge is expected to resentence Mr. Holloway, who is 57, to time served.

“Prosecutors also use their power to remedy injustices,” Judge Gleeson wrote in a memorandum released on Monday. “Even people who are indisputably guilty of violent crimes deserve justice, and now Holloway will get it.”...

Mr. Holloway was charged in 1995 with three counts of carjacking and using a gun during a violent crime (even though it was an accomplice, and not Mr. Holloway, who carried the gun), along with participating in the chop shop. The government offered him a plea deal of about 11 years. He turned it down after his lawyer assured him he could win at trial. Mr. Holloway did not win.

For the first conviction on the gun count, the law required Mr. Holloway to receive five years. But for the second and third convictions, the law required 20 years for each one, served consecutively, a requirement known as “stacking,” which some judges and lawyers argue sounds like a recidivism provision, although it can be applied for crimes, like Mr. Holloway’s, committed hours apart that are part of the same trial.

None of Mr. Holloway’s co-defendants, who all pleaded guilty, received more than six years. At Mr. Holloway’s sentencing in 1996, Judge Gleeson said that “by stripping me of discretion,” the stacked gun charges “require the imposition of a sentence that is, in essence, a life sentence.” (The remainder of the 57 years was the 12 years required for the three carjackings.)...

At a hearing on the Holloway case this month, an assistant United States attorney, Sam Nitze, said that “this is both a unique case and a unique defendant,” citing his “extraordinary” disciplinary record and his work in prison. Also, he said, three of Mr. Holloway’s carjacking victims have said that the 20 years that Mr. Holloway had served in prison was “an awfully long time, and people deserve another chance.” Mr. Nitze agreed to vacate the two convictions, while emphasizing that this should not be taken as indicative of Ms. Lynch’s view on the stacking provision in other cases.

In his opinion issued last week, Judge Gleeson said that Mr. Holloway’s sentence illustrated a “trial penalty,” where those willing to risk trial could be hit with mandatory minimum sentences “that would be laughable if only there weren’t real people on the receiving end of them.”

Judge Gleeson's full 11-page opinion in Holloway v. US, No. 01-CV-1017 (E.D.N.Y. July 28, 2014)(available for download below), is a must-read for lots of reasons. The opinion is not be easily summarized, but this part of its conclusion provide a flavor of what comes before:

It is easy to be a tough prosecutor. Prosecutors are almost never criticized for being aggressive, or for fighting hard to obtain the maximum sentence, or for saying “there’s nothing we can do” about an excessive sentence after all avenues of judicial relief have been exhausted. Doing justice can be much harder. It takes time and involves work, including careful consideration of the circumstances of particular crimes, defendants, and victims – and often the relevant events occurred in the distant past. It requires a willingness to make hard decisions, including some that will be criticized.

This case is a perfect example. Holloway was convicted of three armed robberies. He deserved serious punishment. The judgment of conviction in his case was affirmed on direct review by the Supreme Court, and his collateral attack on that judgment failed long ago. His sentence was far more severe than necessary to reflect the seriousness of his crimes and to adequately protect the community from him, but no one would criticize the United States Attorney if she allowed it to stand by doing nothing.  By contrast, the decision she has made required considerable work. Assistant United States Attorney Nitze had to retrieve and examine a very old case file. He had to track down and interview the victims of Holloway’s crimes, which were committed 20 years ago. His office no doubt considered the racial disparity in the use of § 924(c), and especially in the “stacking” of § 924(c) counts.  He requested and obtained an adjournment so his office could have the time necessary to make an extremely important decision....

This is a significant case, and not just for Francois Holloway. It demonstrates the difference between a Department of Prosecutions and a Department of Justice. It shows how the Department of Justice, as the government’s representative in every federal criminal case, has the power to walk into courtrooms and ask judges to remedy injustices....

A prosecutor who says nothing can be done about an unjust sentence because all appeals and collateral challenges have been exhausted is actually choosing to do nothing about the unjust sentence. Some will make a different choice, as Ms. Lynch did here.

Numerous lawyers have been joining pro bono movements to prepare clemency petitions for federal prisoners, and indeed the Department of Justice has encouraged the bar to locate and try to help deserving inmates. Those lawyers will find many inmates even more deserving of belated justice than Holloway.  Some will satisfy the criteria for Department of Justice support, while others will not.  In any event, there’s no good reason why all of them must end up in the clemency bottleneck.  Some inmates will ask United States Attorneys for the kind of justice made possible in this case, that is, justice administered not by the President but by a judge, on the consent of the Department of Justice, in the same courtroom in which the inmate was sentenced.  Whatever the outcome of those requests, I respectfully suggest that they should get the same careful consideration that Ms. Lynch and her assistants gave to Francois Holloway.

Download Holloway Memo FILED 7-28-14

July 28, 2014 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

Thursday, July 24, 2014

Rep. Ryan's new anti-poverty proposal calls for federal sentencing and prison reforms

Paul-ryanAs reported in this official press release, House Budget Committee Chair Paul Ryan today "released a new discussion draft, 'Expanding Opportunity in America,' [which] proposes a new pilot project to strengthen the safety net and discusses a number of reforms to the EITC, education, criminal justice, and regressive regulation."  Notably, an extended section of this impressive document (Chapter 4, which runs nearly 10 of the draft's 70+ pages) is focused on criminal justice reforms.  Here are segments from this portion of the draft:

About 2.2 million people are currently behind bars — a more than 340 percent increase since 1980.  As a result, we spend about $80 billion on corrections at all levels of government — an inflation-adjusted increase of over 350 percent in that same period.  This growing cost burden on society is a cause for concern.  But perhaps what’s most troubling is the effect on individuals and families....

[Federal sentencing reform] seeks to tap this overlooked potential and ameliorate the collateral impact on children and families.  Although most offenders are in state prisons or local jails, successful reforms at the federal level could encourage states and local governments to follow their example.  This discussion draft explores a number of reforms on multiple fronts — how we sentence individuals to prison, how offenders are treated inside prison, and how society helps them to reintegrate afterwards.

Public safety is priority No. 1, so these reforms would apply to only non-violent and low-risk offenders.  The punishment should fit the crime, but in many cases the punishment of incarceration extends beyond prison time.  Once people have paid their debt to society, they should be able to move on. In that spirit, this proposal suggests three possible reforms:

• Grant judges more flexibility within mandatory-minimum guidelines when sentencing non-violent drug offenders.

• Implement a risk- and needs-assessment system in federal prisons while expanding enrollment in rehabilitative programming to reduce recidivism. Allow non-violent and low-risk inmates to use enrollment to earn time off their prison stay towards prerelease custody.

• Partner with reforms at the state and local level....

Unlike state inmates, only 6 percent of federal inmates are violent offenders, while another 15 percent are guilty of weapons offenses.  In fact, most federal prisoners—nearly 51 percent — are serving time for a drug-related offense, and data from the U.S. Sentencing Commission shows that most of these federal drug offenders are in the lowest criminal-history category.   But under current law, a single gram of crack cocaine could be all that separates a convict from a less-than-five-year sentence and a 40-year sentence. Rigid and excessive mandatory sentences for low-level drug offenders, like these, may add to an already over-crowded prison system without appreciably enhancing public safety.

There are also economic and social consequences to unreasonably long sentences. Not only do they put undue burdens on families, but they may actually make people more likely to return to crime.  As Justice Fellowship notes, “Rather than encouraging criminals to become peaceful, productive citizens, prison culture often has the opposite effect, operating as a graduate school for crime.”  The federal government should follow the lead of several states and consider how sentencing guidelines, including alternative forms of detention, can both prevent crime and steer non-violent, low-risk drug offenders away from the addictions and networks that make them more likely to reoffend....

Although crime rates have fallen since the 1980s, the unintended consequence of these mandatory minimums is that some low-risk, non-violent offenders serve unreasonably long sentences....

A major challenge of criminal-justice reform is lowering the high rates of recidivism. High rates of recidivism are not only costly to the taxpayer and dangerous for society; they present a missed opportunity to bring more individuals into society as productive and contributing members....

[Proposed] reforms seek to put a greater focus upon rehabilitation and reintegration. Although the federal government’s reach is limited, these reforms would give judges the discretion they need to prevent nonviolent offenders from serving unreasonably long sentences; they would align inmates’ incentives to help reduce recidivism; and they would partner with states and community groups to expand their life-affirming work.

July 24, 2014 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Friday, July 18, 2014

Split Iowa Supreme Court declares all mandatory juve sentencing terms violate state constitution

Thanks to a helpful reader, I learned this afternoon that the Iowa Supreme Court today declared unconstitutional pursuant to the Iowa Constitution the imposition of any and all mandatory terms of imprisonment on juvenile offenders.  The majority ruling in Iowa v. Lyle, No. 11–1339 (Iowa July 18, 2014)  

In this appeal, a prison inmate who committed the crime of robbery in the second degree as a juvenile and was prosecuted as an adult challenges the constitutionality of a sentencing statute that required the imposition of a mandatory seven-year minimum sentence of imprisonment.  The inmate was in high school at the time of the crime, which involved a brief altercation outside the high school with another student that ended when the inmate took a small plastic bag containing marijuana from the student.  He claims the sentencing statute constitutes cruel and unusual punishment in violation of the State and Federal Constitutions when applied to all juveniles prosecuted as adults because the mandatory sentence failed to permit the court to consider any circumstances based on his attributes of youth or the circumstances of his conduct in mitigation of punishment.  For the reasons expressed below, we hold a statute mandating a sentence of incarceration in a prison for juvenile offenders with no opportunity for parole until a minimum period of time has been served is unconstitutional under article I, section 17 of the Iowa Constitution. Accordingly, we vacate the sentence and remand the case to the district court for resentencing. Importantly, we do not hold that juvenile offenders cannot be sentenced to imprisonment for their criminal acts.  We do not hold juvenile offenders cannot be sentenced to a minimum term of imprisonment.  We only hold juvenile offenders cannot be mandatorily sentenced under a mandatory minimum sentencing scheme.

The majority opinion supporting this ruling runs nearly 50 pages and, unsurprisingly, has a lot to say about the US Supreme Court's recent Eighth Amendment work in Graham and Miller. In addition, two forceful dissents follow the majority's opinion in Lyle, and here is the heart of one of the dissenting opinions:

By holding Lyle’s seven-year mandatory minimum sentence for his violent felony is cruel and unusual punishment and unconstitutional under article I, section 17 of the Iowa Constitution, rather than under the Eighth Amendment, the majority evades review by the United States Supreme Court.  As Justice Zager observes, no other appellate court in the country has gone this far. Our court stands alone in taking away the power of our elected legislators to require even a seven-year mandatory sentence for a violent felony committed by a seventeen-year-old.  Will the majority stop here?  Under the majority’s reasoning, if the teen brain is still evolving, what about nineteen-year olds?  If the brain is still maturing into the mid-20s, why not prohibit mandatory minimum sentences for any offender under age 26?  As judges, we do not have a monopoly on wisdom.  Our legislators raise teenagers too.  Courts traditionally give broad deference to legislative sentencing policy judgments. See State v. Oliver, 812 N.W.2d 636, 650 (Iowa 2012) (“We give the legislature deference because ‘[l]egislative judgments are generally regarded as the most reliable objective indicators of community standards for purposes of determining whether a punishment is cruel and unusual.’ ” (quoting Bruegger, 773 N.W.2d at 873)). Why not defer today?

July 18, 2014 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, July 13, 2014

USSC Chair reiterates Commission's sentencing reform message to House Judiciary Committee

This past Friday, US Sentencing Commission Chair, Chief Judge Patti Saris, testified at this hearing of Over-Criminalization Task Force of the Committee on the Judiciary of the US House of Representatives.  Her lengthy written testimony is available at this link, and here is a summary paragraph from the Chair's discussion of recommended mandatory minimum reforms:

Based on [our] analysis, the Commission continues to recommend unanimously that Congress consider a number of statutory changes. The Commission recommends that Congress reduce the current statutory mandatory minimum penalties for drug trafficking. We further recommend that the provisions of the Fair Sentencing Act of 2010, which Congress passed to reduce the disparity in treatment of crack and powder cocaine, be made retroactive. Finally, we recommend that Congress consider expanding the so-called “safety valve,” allowing sentences below mandatory minimum penalties for non-violent low-level drug offenders, to offenders with slightly greater criminal histories than currently permitted.

Republican and Democratic members of this Task Force and others in Congress have proposed legislation to reform certain mandatory minimum penalty provisions. The Commission strongly supports these efforts to reform this important area of the law.

Notably, as this official press release highlights, Judge Irene Keeley, chair of the Judicial Conference Criminal Law Committee, echoed similar messages in he testimony to the House Task Force:

A representative of the Judicial Conference today told a House Judiciary Task Force that policy initiatives curbing over-federalization of criminal law, reforming mandatory minimum sentences and amending the Sentencing Guidelines have the support of the Judicial Conference, but that the Judiciary currently lacks the resources to shoulder resulting increased workload.

“Policy-makers must not create a new public safety crisis in our communities by simply transferring the risks and costs from the prisons to the caseloads of already strained probation officers and the full dockets of the courts,” said Judge Irene Keeley, chair of the Judicial Conference Criminal Law Committee. “Lasting and meaningful solutions can be attained only if the branches work together to ensure that the correct cases are brought into the federal system, just sentences are imposed, and offenders are appropriately placed in prison or under supervision in the community.”

July 13, 2014 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (4) | TrackBack

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 (15) | 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

Wednesday, April 23, 2014

President Bartlet urges Congress to pass the Smarter Sentencing Act

I am pleased and intrigued to learn via this Mother Jones piece, headlined "Martin Sheen Reprises His 'West Wing' Role — for a Sentencing Reform PSA," that a high-profile celebrity is making the case for federal sentencing reform. Here are the details (along with links):

On Tuesday, Brave New Films released a new PSA calling on Congress to pass the Smarter Sentencing Act. The proposed sentencing-reform legislation aims to reduce prison populations and costs by creating less severe minimum terms for nonviolent drug offenders. (On Monday,Yahoo News reported that President Obama could grant clemency to "hundreds, perhaps thousands" of nonviolent drug offenders by the end of his second term.) The video was produced in partnership with the ACLU and Families Against Mandatory Minimums (FAMM), and stars actor Martin Sheen. It's titled "President Bartlet has a message for Congress," in reference to Sheen's role on Aaron Sorkin's political drama The West Wing.

"When BNF joined with FAMM and the ACLU to rally support for the Smart Sentencing Act, we couldn't think of a better spokesperson than Martin Sheen," Brave New Films president Robert Greenwald said. "When he portrayed President Bartlett on The West Wing, his character commuted the sentences of nonviolent drug offenders. In the real world, Martin Sheen has been an advocate for sentencing reform and alternatives to the harsh, long prison sentences we give to nonviolent drug offenders."

April 23, 2014 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Monday, April 14, 2014

House Judiciary Chair suggests Smarter Sentencing Act still facing uphill battle on the Hill

DownloadCQ News has this important new article on federal sentencing reform developments in Congress under the headline "Goodlatte: Don't 'Jump to Conclusions' on Mandatory Minimums." Here are excerpts:

House Judiciary Chairman Robert W. Goodlatte, R-Va., is not convinced that Congress should scale back mandatory minimum drug sentences, even as the Obama administration and a bipartisan coalition in the Senate step up their efforts to do so.  Goodlatte, speaking to reporters from CQ Roll Call and Politico during a pre-taped interview that aired Sunday on C-SPAN’s “Newsmakers” program, said the severity of drug sentences “is a legitimate issue for us to be examining.”

He noted that his committee has set up a task force to review mandatory minimum sentences and many other aspects of the federal criminal code, and he did not rule out taking up a bipartisan, administration-backed Senate proposal (S 1410) that would reduce some minimum drug penalties by as much as 60 percent.  The Senate could take up the proposal in the coming weeks after the Judiciary Committee approved it 13-5 in March.

Despite signaling his willingness to consider sentencing changes, Goodlatte said, “I want to caution that we shouldn’t jump to conclusions about what is right and what is wrong with the law yet.” Asked whether he believes that some federal prisoners are facing dramatically long sentences for relatively minor drug crimes — a claim frequently made by supporters of an overhaul — Goodlatte expressed skepticism.

“If you’re talking about 25- or 30-year sentences, you’re talking about something that the judge and the jury found appropriate to do above mandatory minimum sentences, because those are five-year and 10-year sentences,” he said.  Regarding the mandatory minimum sentences themselves, he said, “you’ll find that the quantities of drugs that have to be involved are very, very large.”

In the case of marijuana possession, for example, it takes “hundreds” of pounds of the drug to trigger a five-year mandatory minimum penalty and “thousands” of pounds to trigger a 10-year mandatory minimum penalty, Goodlatte said.  “With other drugs that are very potent in much, much smaller doses, those quantities are much, much lower,” he said. “But if you look at it from the standpoint of what someone has to be engaged in dealing, you’re talking about large quantities before you get those minimums.”

The Senate bill, which is supported by conservatives including Ted Cruz, R-Texas, Mike Lee, R-Utah, and Rand Paul, R-Ky., would reduce 10-year minimum sentences for certain drug crimes to five years, while reducing five-year minimum sentences for other drug crimes to two years.  If those drug crimes result in “death or serious bodily injury,” mandatory minimum penalties would be slashed from their current 20 years to 10 years.  In all of the penalties being reconsidered, mandatory sentences are triggered based on the quantity of drugs involved in a particular crime....

Molly Gill, government affairs counsel for the advocacy group Families Against Mandatory Minimums, said in an e-mail that the quantity of drugs involved in a crime is “bad proxy for culpability” and suggested that it should not be used as the basis to defeat proposed changes to fixed drug sentences....

She noted that the independent U.S. Sentencing Commission, which sets advisory sentencing guidelines for the federal judiciary, found in a 2011 study that “the quantity of drugs involved in an offense is not closely related to the offender’s function in the offense.” So-called “drug mules,” for example, physically transport large quantities of narcotics for others but are not themselves major traffickers or kingpins, Gill said.

Even as Goodlatte showed skepticism about lowering mandatory drug sentences, Attorney General Eric H. Holder Jr. kept up his call for Congress to take action on the Senate proposal, known as the Smarter Sentencing Act.

After the Sentencing Commission approved its own changes in drug sentencing guidelines last week — a move that is expected to reduce some drug offenders’ penalties by an estimated 11 months — Holder urged Congress to follow up with more sweeping, statutory changes. “It is now time for Congress to pick up the baton and advance legislation that would take further steps to reduce our overburdened prison system,” he said in a statement.  “Proposals like the bipartisan Smarter Sentencing Act would enhance the fairness of our criminal justice system while empowering law enforcement to focus limited resources on the most serious threats to public safety.”

The full video of the interview with Rep. Goodlatte is available at this C-Span archive, and sentencing fans will want to cue the video up to a little after the 10 minute mark. Not long after that point, there is a discussion of federal marijuana policies and then the interview turn to drug sentencing generally. A review of the whole segment makes me a bit less pessimistic about the possibilities of federal sentencing reform making it through the House of Representatives. But being a bit less pessimistic is hardly being optimistic.

Some prior posts about federal prosecutorial perspectives on sentencing reform:

April 14, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack