Monday, November 11, 2013

Two notable SCOTUS criminal law arguments (with federal mandatory minimums at issue)

The Supreme Court Justices could have perhaps benefited from this long weekend by hanging out with my terrific first-year Criminal Law students because they return to work on Tuesday to hear two interesting cases raising classic issues relating to the basic doctrines of substantive criminal law. thanks to Congress, though, these issue arise for SCOTUS with severe mandatory minimum sentencing terms hanging in the balance.

SCOTUSblog, of course, is the place to go for a quick primer on Burrage v. United States and Rosemond v. United States, and here are the links and introduction for the argument previews now posted there:

    Law school hypos about criminal law mens rea by Rory Little

At 10:00 a.m. on Tuesday, November 12, the Court will consider a philosophical question that has troubled the criminal law for centuries: what mens rea (mental state) is required to prove “aiding and abetting” liability?   The question in Rosemond v. United States arises under 18 U.S.C. § 924(c), the federal law that provides significant mandatory minimum imprisonment terms for carrying, using, brandishing, or discharging a firearm during and in relation to a narcotics offense.  Arguing for petitioner Justus Rosemond, seeking to overturn his conviction, will be John P. Elwood, a former Assistant to the Solicitor General who is now a partner in the Washington, D.C., office of Vinson & Elkins.  Arguing for the federal government will be Assistant to the Solicitor General John F. Bash.

     Crime and death’s cause By Lyle Denniston

At 11 a.m. next Tuesday, the Supreme Court will hold one hour of oral argument on the proof that federal prosecutors must offer to get an enhanced prison sentence for a drug dealer when a customer who bought heroin died.  Arguing for the convicted Iowa man in the case of Burrage v. United States will be Angela L. Campbell, of the Des Moines law firm of Dickey & Campbell.   Arguing for the federal government will be Benjamin J. Horwich, an assistant to the Solicitor General.

UPDATE: The oral argument transcript in Rosemond v. United States is available at this link; the transcript in Burrage v. United States is available at this link.

November 11, 2013 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Thursday, November 07, 2013

"Free at Last? Judicial Discretion and Racial Disparities in Federal Sentencing"

The title of this post is the title of this notable new paper by Crystal Yang now available via SSRN. Here is the abstract:

The Federal Sentencing Guidelines were created to reduce unwarranted sentencing disparities among similar defendants.  This paper explores the impact of increased judicial discretion on racial disparities in sentencing after the Guidelines were struck down in United States v. Booker (2005).  Using data on the universe of federal defendants, I find that black defendants are sentenced to almost two months more in prison compared to their white counterparts after Booker, a 4% increase in average sentence length.  To identify the sources of racial disparities, I construct a dataset linking judges to over 400,000 defendants.  Exploiting the random assignment of cases to judges, I find that racial disparities are greater among judges appointed after Booker, suggesting acculturation to the Guidelines by judges with experience sentencing under mandatory regime. Prosecutors also respond to increased judicial discretion by charging black defendants with longer mandatory minimums.

I am always interested in sophisticated analyses of the post-Booker sentencing system, so I am looking forward to finding time to review this article closely. But, as with lots of "disparity" sentencing scholarship, I worry that this article is among those spending lots of time worrying about and trying to figure out whose sentences may be longer after Booker rather than worrying about and trying to figure out if all sentence remain way too long in the federal sentencing system.

November 7, 2013 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Monday, November 04, 2013

"Use of tough federal sentencing laws varies widely nationwide"

The title of this post is the headline of this notable new Los Angeles Times article, which carries this subheading: "Some U.S. attorneys have begun to ease up on policies that have led to lengthy sentences for low-level drug criminals. But change has been slow for others." Here are excerpts from the piece:

Under mandatory sentencing laws, it has become a not-so-hidden fact of life in federal courthouses that prosecutors — not judges — effectively decide how long many drug criminals will spend behind bars. The result has been federal prisons packed with drug offenders.

But Atty. Gen. Eric H. Holder Jr. is now trying to steer the Justice Department away from the get-tough policies that have led to lengthy sentences for what one judge called the "low-hanging fruit" in the drug war — dime-a-dozen addicts and street dealers.

Prosecutors have considerable discretion under the laws. If they cite the amount of drugs seized in the charging document, that can trigger the mandatory minimum; if they leave it out, it doesn't. For offenders with prior drug convictions, prosecutors can file a so-called 851 motion, named after a section in the federal code that automatically doubles a sentence — or makes it mandatory life.

Although the mandatory laws were supposed to lead to uniformity, statistics show huge variations across the country in how often prosecutors use them. Holder has instructed prosecutors to avoid using these powerful weapons against lower-level, nonviolent offenders, but, even so, they retain the authority to decide which small players get a break and which get slammed....

In the two months since Holder issued his new policy, some U.S. attorneys ... have begun to pull back, according to judges and attorneys. "We had some terribly harsh sentences," said Randy Murrell, federal public defender in the northern district of Florida. "It's gone on for years, and no one had the courage and gumption to change it. I do think they are changing the policy now."

But elsewhere, change has been slower in coming. "We are hopeful that this will loosen up some of the policies, but we have certainly not seen it yet," said Jonathan Hawley, the federal public defender in central Illinois, another district with a history of tough prosecutions.

A study by the U.S. Sentencing Commission found that more than 47% of all drug defendants in Iowa's southern federal court district ended up with mandatory minimum sentences in 2010 — the third-highest rate in the country. In the northern district, it was more than 40%, the sixth-highest rate. There's even greater inconsistency in the use of 851 motions. In Iowa, they landed on about 80% of eligible offenders, according to sentencing commission data. In bordering Nebraska, the figure was 3%.

In a recent opinion, [Judge Mark] Bennett criticized the Justice Department for the "jaw-dropping, shocking disparity" in how prosecutors wielded the motions. He called the process "both whimsical and arbitrary, like a Wheel of Misfortune."

Some say prosecutors will be reluctant to give up a powerful tool to break open cases — the ability to threaten recalcitrant witnesses with a long federal sentence if they don't play ball....

One federal judge in Brooklyn, N.Y., said Holder's policy didn't go far enough to rein in prosecutors who routinely wielded 851 sentence enhancements as a "2-by-4 to the forehead" to force defendants to accept plea deals. If the Justice Department "cannot exercise its power … less destructively and less brutally, it doesn't deserve to have the power at all," wrote District Judge John Gleeson, a former prosecutor, in a sentencing opinion last month.

A few prior related posts:

November 4, 2013 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (21) | TrackBack

Thursday, October 31, 2013

New report (from small government groups) urges Louisiana to reform its toughest sentencing laws

PippAs reported in this AP article, headlined "New study calls on La. to change sentencing laws," a notable group of libertarian-leaning organizations has produced a big report urging the state with the highest rate of incarceration to significantly scale back its most extreme sentencing laws.  Here are the basics:

Louisiana should shrink its prison population and costs by repealing minimum mandatory sentences for nonviolent crimes, said a study released Tuesday by several right-leaning policy organizations.  The groups suggest that Louisiana could maintain public safety while also reducing a per capita incarceration rate that is the highest in the nation, by making changes to the habitual offender law and locking up fewer people for nonviolent offenses.

The Reason Foundation, a libertarian organization based in California, made the suggestions along with the Pelican Institute for Public Policy, a Louisiana-based conservative organization, and the Texas Public Policy Foundation.  "Harsh, unfair sentences are putting too many Louisianans in jail for far too long, and at a terrible cost to taxpayers and society," Julian Morris, vice president of Reason Foundation and co-author of the study, said in a statement.

Nonviolent offenders account for the majority of the state's inmates, the report says. By shrinking its prison population, the study says Louisiana could invest more money in rehabilitation programs for those who remain in jail.

Gov. Bobby Jindal's administration said it has asked the state's sentencing commission to review the report's recommendations.  Any changes would need approval from state lawmakers.

The full 36-page report, titled "Smart on Sentencing, Smart on Crime: An Argument for Reforming Louisiana’s Determinate Sentencing Laws," is available at this link. The reports executive summary can be accessed here, and it gets started this way:

Over the past several decades, Louisiana legislators have passed a number of determinate sentencing laws aimed at reducing crime and incapacitating certain types of offenders. Because these laws have been disproportionately applied to nonviolent crimes, nonviolent offenders now account for the majority of inmates and admissions to prison in the state. This has produced a number of unfortunate consequences, such as an increase in the state’s prison population from 21,007 in 1992 to 39,709 in 2011 and a $315 million increase in correction expenditures during the same time period, from $442.3 million (in 2011 dollars) in 1992 to $757.4 million in 2011.  Meanwhile, there is little evidence that the laws have done anything to reduce Louisiana’s violent crime rate, which remains considerably above both the national average and the rates in its neighboring states. Today, Louisiana has the highest incarceration rate in the country, with 868 of every 100,000 of its citizens in prison.

Louisiana’s citizens could benefit considerably from changes to the way in which convicted criminals are sentenced.  As things stand, nonviolent offenders who pose little or no threat to society are routinely sentenced to long terms in prison with no opportunity for parole, probation or suspension of sentence.  In most cases, this is a direct result of the state’s determinate sentencing laws.  These prisoners consume disproportionate amounts of Louisiana’s scarce correctional resources, which could be better utilized to ensure that violent criminals are more effectively kept behind bars.

October 31, 2013 in Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Wednesday, October 23, 2013

Federal sentencing reform: an unlikely Senatorial love story and a Booker double-dose?

O-PAUL-BOOKER-facebookThe silly title of this post is my first reaction to seeing this new report in the Wall Street Journal about the plans and priorities of US Senator-elect from New Jersey Cory Booker.  The piece is headlined "On Booker's To-Do List: Revamp Drug Laws; New Jersey's Senator-Elect Face Challenges Once He Takes Office," and here are the excerpts that caught my special attention:

Senator-elect Cory Booker sees revamping drug policies as one of the principal issues he can champion once he takes office in Washington, D.C., and he believes he can draw bipartisan support on the issue—even among those who supported his Republican challenger in the special-election race.

Mr. Booker said he has had initial conversations with Senate Majority Leader Harry Reid about his opinions on the issue—such as eliminating mandatory minimum-sentencing laws for nonviolent offenders and reducing incarceration rates as a way to help save tax dollars.

In the special-election race that wrapped up last week, Mr. Booker campaigned on working across the aisle despite the bitter partisan divide in Washington. Drug policy could be one area where he finds some success, according to those who work in the field. He singled out Sen. Rand Paul of Kentucky, a libertarian, as someone who sees eye-to-eye with him on the issue.

"I want to work with him," said Mr. Booker, about Mr. Paul, during an interview Tuesday at his campaign office in the city he led as mayor for seven years. "I take everybody in the Senate as sincere people who want to make a difference."

Mr. Paul — a tea-party leader seen as a possible 2016 Republican presidential contender — endorsed Mr. Booker's challenger, Steve Lonegan, in the Oct. 16 Senate election. But a spokeswoman for Mr. Paul on Tuesday welcomed Mr. Booker's gesture.

"Senator Paul would be pleased to work with any member who believes that mandatory minimum sentencing is unnecessary," the spokeswoman said. "He looks forward to Senator Booker's assistance on this important issue."

I am very pleased to see Booker talking up federal sentencing reform as he heads inside the Beltway, and I am especially excited to see him calling for a partnership with Senator Rand. Indeed, if the two of them truly seek to make sentencing reform a priority in the weeks and months ahead, the momentum toward reform may really become unstoppable.

And, of course, the notable irony of another person with the surname Booker shaking up federal sentencing perhaps mertis some special attention by clever wanna-be-headline-writing commentators.

Some recent and older related posts:

October 23, 2013 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences? | Permalink | Comments (6) | TrackBack

Monday, October 21, 2013

Chicago Sun-Times editorial explains why "Mandatory-minimum sentencing doesn’t work"

Continuing an important on-going debate in Illinois over use of mandatory minimum sentences to deal with the problem of violent gun crimes, the Chicago Sun-Times today has this extended editorial headlined "Mandatory-minimum sentencing doesn’t work." Here are excerpts:

Mandatory minimum sentences, touted by some as a cure for gun crimes, are little more than a power grab by prosecutors. The intent of a mandatory minimum sentence is to make sure that people convicted of certain serious crimes get prison time and not a slap on the wrist, such as probation. But in the real world, that’s not what happens.

In the real world, this is what happens: Mandatory minimums, dictated by law, make it impossible for judges to use common-sense discretion when imposing sentences, so judges must nail some poor sap who simply made a foolish mistake with the same harsh sentence they would impose on a hardened criminal. But those mandatory minimums do nothing to reduce the ability of prosecutors to use discretion when deciding what charges — light or heavy — to file against a defendant. The indirect result is that prosecutors, not judges, set the sentence.

Mandatory sentencing is a fiction. It simply takes the decision-making for sentencing away from judges sitting in open court, where their actions can be questioned by higher courts, and hands that huge power and responsibility to prosecutors, who make their decisions behind closed doors, never to be challenged.

Legislation that might be called to a vote this week in Springfield would triple Illinois’ mandatory minimum sentence from one to three years for people convicted of the illegal use of a weapon, and it would broaden the kinds of crimes covered. An earlier version advanced out of committee in the spring legislative session, but ultimately died. The bill is backed by Mayor Rahm Emanuel, Police Supt. Garry McCarthy and the families of some gun crime victims. McCarthy says 108 shootings or murders so far in 2013 would have been prevented had the bill already been a law this year. He cited the case of Bryon Champ, convicted in 2012 of the unlawful use of a weapon, who is accused of taking part in a September drive-by shooting that injured 13 in Chicago’s Cornell Square Park.

Clearly, we all wish Champ — if in fact he was one of the drive-by shooters — had still been behind bars. But what about other sorts of gun-possession offenders who would qualify for same mandatory minimum sentence? Would we really send an 87-year-old woman who lives in a dangerous neighborhood to prison for three years for illegally keeping a gun as protection? Should state Sen. Donne Trotter really have gone to prison for three years when a gun was found in his luggage at O’Hare Airport?

It’s a question that will come up more often in Illinois when the concealed carrying of weapons becomes legal next year, and people — forgetting they are armed — try to carry guns into prohibited places. Should those people go to prison for three years as well?

The thinking behind mandatory minimum sentences is that prosecutors can be better trusted than judges to mete out tough punishment. Cook County State’s Attorney Anita Alvarez criticizes judges for being “quite lenient.” But most judges in the criminal court system are former prosecutors. And from 2010 through 2012, about 14,000 people were charged in three categories of unlawful use of a weapon, but the number of convictions was less than half of that. Changing sentences in cases where there is no conviction wouldn’t make any difference.

In analyzing the bill, the University of Chicago Crime Lab estimated that putting more people in prison would lead to 3,800 fewer crimes per year, including 400 fewer serious violent crimes. But the Sentencing Policy Advisory Council calculates that had the stricter mandatory minimum law been in effect from 2010 through 2012, it would have boosted prison costs by about $393 million. A Department of Corrections note attached to the legislation last spring estimated the bill would result in an increase of 3,860 inmates, with additional operating costs of $701,712,300 and construction costs of $263,130,300 over 10 years. That money would have to come from somewhere. If that leads to smaller police forces or cutting out effective programs to prevent recidivism, we might wind up with more gun crime than before.

Julie Stewart, president of Washington-based Families Against Mandatory Minimums, noted in a Feb. 17 Chicago Sun-Times op-ed that Chicago’s murder rate actually jumped 16 percent after Illinois imposed its current one-year mandatory minimum in 2011. And a report released Thursday by the Northwestern School of Law Bluhm Legal Clinic concludes mandatory sentences would not deter crime....

On the national level, the Obama administration is trying to curb mandatory minimum sentencing, which is an idea that goes back to the 1980s. Illinois should be doing so as well.

October 21, 2013 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, October 18, 2013

What the heck is NYC doing so right to reduce murders, and why can't Chicago replicate it?

The question in the title of this post is prompted by this notable little news item from the New York Times headlined "New York Today: Murder Milestone." Here are the encouraging details:

The city’s murder rate keeps plummeting. So far this year, it’s down 26 percent, officials said.

If that trend holds, it would be the biggest one-year drop yet. And last year had the fewest murders in at least 50 years.

We asked the police bureau chief of The New York Times, Joseph Goldstein, to explain the decline. Some credit goes to a focus by the police on informal youth gangs known as crews, Mr. Goldstein told us.

The police, he said, “make the point that murders attributable to street violence are down even more significantly.” Last week, there were no murders at all.

The drop comes even as officers are doing only about half as many stop-and-frisks as they did at the beginning of last year.

Michael Jacobson, a former city correction commissioner and now a sociology professor at City University of New York, noted that last year’s total of 419 murders was down from 2,245 in 1990.

“If you asked any criminologist 20 years ago, ‘Can it go from 2,200 to 400?’ they would have thought you were insane,” he said. “But if it can go from 2,200 to 400, why can’t it go from 400 to 200?”

This wonderful reality should be celebrated by everyone, though it ought to be especially cheered by those who claimed that recent violent crime declines in the NYC were attributable primarily to very aggressive stop-and-frisk policies and practices. Also of note, especially for sentencing fans, is that this continuing decline in NYC murders is taking place within in a state without the death penalty and with a relatively low (and recently declining) prison population.

Of course, correlation does not mean causation, and a major city in a major state (Chicago, Illinois) is having continuing big problems with violent crime during the same period. Indeed, while folks in Chicago are now very busy having an interesting and robust debate over whether a law proposing mandatory minimum sentences for gun possession is a good way to fight violent crime (as documented in this effective op-ed and this prior post), I wonder if they might use their time and energy more effectively by trying everything they can to replicate everything that folks in NYC are doing lately.

Some related posts on modern crime rates, especially in urban areas: 

October 18, 2013 in Mandatory minimum sentencing statutes, National and State Crime Data | Permalink | Comments (13) | TrackBack

Tuesday, October 15, 2013

Fascination and frustration with "finality fixation" in en banc Sixth Circuit Blewett arguments

As mentioned in this recent post, I have so far resisted writing up my thoughts concerning last week's remarkable Sixth Circuit en banc Blewett oral argument on crack sentencing modifications.  I have done so in part because I wanted to be able to devote a block of time to the task, and in part because via the Sixth Circuit website folks can (and should) listen for themselves to the audio recording of the hour-long argument via this link.

Now that I have had more time to think about last week's oral argument and the broader issues in Blewett, I continue to find myself (as the title of this post suggests) fascinated and frustrated by what I will call a "finality fixation" in the context of sentencing issues.   A variation of this fixation made me a bit batty in the FSA pipeline debate that culminated in the Supreme Court's Dorsey ruling, and it also comes to play in the on-going dispute over whether the Supreme Court's Miller ruling will apply retroactively to final juve murder sentences.  I am likely fixated on this notion of a "finality fixation"  because I am currently working on a symposium article on this topic.  Still, the tenor of much of the Blewett oral argument, and other arenas where concerns about sentencing finality seem often now to trump interests in sentencing fitness and fairness, have a way of driving me to fits of fascination and frustration.

At the risk of repeating parts of the brief on Eighth Amendment issues which I helped file on behalf of the NACDL (and which is discussed and linked via this prior post), let me try here to explain what still makes me a bit nutty about cases like Blewett.  

Point 1:  Each and every federal criminal justice policy-maker in the three branches of the federal government — Congress, the Prez and his Justice Department, and the US Sentencing Commission — have all expressly and formally declared that all 100-1 ratio pre-FSA crack prison sentences were unfair, excessive and ineffectual, AND Congress enacted the "Fair Sentencing Act" to lower all federal crack sentences by raising the trigger quantity for mandatory minimum prison terms and by mandated that the US Sentencing Commission significantly lower all crack guideline prison ranges.

Point 2: When it reformed modern sentencing rules and eliminated parole release, Congress created a express statutory sentencing modification mechanism — in 18 U.S.C. § 3582(c)(2) — through which offenders still in prison who were "sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission [can move for a court to] reduce the term of imprisonment," AND thousands of the most serious crack offenders sentenced before the FSA have had their prison sentences reduced through this stautory mechanism.  (This latest USSC report indicates not only that 7,300+ pre-FSA crack offenders have had their prison terms reduced by an average of 29 months, but also that thousands of these crack offenders got reduced sentences despite having extensives criminal histories and/or having used a weapon in their offense and/or having a leadership role in the offense.  See Table 6 of USSC report.)

Point 3: Congress, the Prez and his Justice Department, and the US Sentencing Commission have all ordered, authorized and/or not objected to thousands of more serious pre-FSA crack offenders being eligble for (and regularly receiving) reduced prison terms via the statutory sentencing modification mechanism of 3582(c)(2).  The Blewetts and other less serious pre-FSA crack offenders whose sentences were impacted by the 100-1 mandatory minimum terms and who are still in federal prison serving (now-repealed) pre-FSA crack sentences that every federal criminal justice policy-maker in each branch of the federal government have expressly and formally declared unfair, excessive and ineffectual are now simply arguing that they, too, should be eligible to use the same statutory sentence modification mechanism that thousands of the most serious crack offenders have already benefitted from. 

Point 4: Nobody has, to my knowledge, even tried to offer a substantive defense or penological justification as to why the Blewetts and only those less serious pre-FSA crack offenders should not even be eligible for the statutory sentencing modification mechanism of 3582(c)(2) and thus must serve the full duration of (now-repealed) pre-FSA crack sentences.  Indeed, it seem to me at least that it is not just unjust, but irrational and cruel and unusual, to require only the least serious pre-FSA crack offenders to serve out prison terms that every federal criminal justice policy-maker in each branch of the federal government have expressly and formally declared unfair, excessive and ineffectual, especially given that thousands of the most serious pre-FSA crack offenders can and have already benefitted from the statutory sentencing modification mechanism of 3582(c)(2).  (Critically, Congress has never stated nor even suggested, either expressly or implicitly, that it wanted the Blewetts and only those less serious pre-FSA crack offenders to be catergorically ineligible for sentence modification.  Indeed, I think the fair implication of the express provisions of the FSA is that all pre-FSA crack offenders should at least have a chance for sentence modification pursuant to 3582(c)(2).)

In light of all these points, in my view the only plausible rationale for denying the Blewetts and other less serious pre-FSA crack offenders a chance for sentence modification is the oft-stated, but rarely thought-through, idea of "finality."  And though I think finality is an important policy concern when defendants are attacking long-final convictions, I do not think this concept of finality historically has or now should be given great weight when a defendant is only seeking to modestly modify a sentence.  Further, when a federal defendant is seeking only a modest prison sentence modification under an express statutory provision created by Congress, the comity and separation of powers concerns that might also give finality interests extra heft are not present. 

Thus my contention that only a "finality fixation" fully accounts for why so many judges seem resistant to the various legal arguments that the Blewetts and other less serious crack offenders are making in these FSA cases.  As I see it, given the text and purposes of the FSA and the text and purposes of 3852(c)(2), the eagerness of judges to deny relief to the Blewetts and other less serious crack offenders reflects a fixation on the notion that, even in this remarkable and unique setting, concerns about sentencing finality should still consistently and conclusively trump the need to achieving sentencing fitness and fairness.  And that reality fascinates and frustrates me.

Am I silly, dear readers, to be so fascinated and frustrated by all this?  I am hoping, especially from those eager to see the Blewett panel decision undone (which I now fear a majority of the Sixth Circuit is planning to do), for responses in the comments that might help me better see what my analysis above is missing and/or why I should not be so nutty about these "finality fixation" matters.

Related posts on Blewett:

October 15, 2013 in Examples of "over-punishment", Implementing retroactively new USSC crack guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Monday, October 14, 2013

Intriguing research and debate surrounding talk of increasing mandatory minimum sentence for illegal gun possession in Chicago

This new Chicago Sun-Times article, headlined "U. of C. study bolsters call for stiffer firearms sentences: police supt.," reports on some notable new crime research concerning a proposal to increase the mandatory minimum sentence for certain gun possession crimes.   Here are excerpts:

Mayor Rahm Emanuel’s argument for stiffer firearms sentences is bolstered by a new study showing gun possession offenders placed on probation are more likely to get re-arrested for murder than other felons, his police superintendent says.

The University of Chicago Crime Lab studied whether those convicted of aggravated unlawful use of a weapon — a gun possession charge — have higher arrest rates for murders and non-fatal shootings than other felons. Using Chicago Police arrest data, the study found that aggravated UUW offenders were four times more likely to be re-arrested on murder charges and nearly nine times more likely to be locked up for nonlethal shootings than other felons.

The U of C study focused on all felons — and a subset of aggravated UUW offenders — who have been sentenced to probation between 2008 and 2011 in Cook County. The study tracked any re-arrests within two years of their probation date.

“This data makes clear that we have to treat illegal gun possession as the violent crime that it is,” police Supt. Garry McCarthy said on Friday.

A bill backed by the Emanuel administration and Cook County State’s Attorney Anita Alvarez would raise the mandatory minimum sentence for aggravated UUW from one to three years and would require offenders to serve 85 percent of their sentences — a “truth in sentencing” provision.

“No matter how you look at it, this bill will save lives,” McCarthy said. “Every illegal gun on our street is a potential murder and the bill pending in Springfield is narrowly tailored to stop violent criminals.”...

Todd Vandermyde, a lobbyist for the National Rifle Association in Illinois, said he remains opposed to the legislation because he’s concerned first-time offenders could get trapped in the same net as felons.

Meanwhile, the Illinois Department of Corrections last week warned of the steep cost of getting tougher on gun-possession offenders. The department said it would cost about $1 billion to house an additional 3,860 prisoners over 10 years.  Those costs would include the $21,000 annual cost of housing each prisoner plus the cost of building new prisons or retrofitting existing ones to accommodate them....

Vandermyde said he doesn’t have a problem with boosting the penalties for felons caught with guns.  But he’s worried about first-time offenders getting three-year prison terms....

Aggravated unlawful use of a weapon involves a person who possesses a gun on his person or vehicle, isn’t on his property, and one of the following circumstances exists: the gun is loaded and immediately accessible; the gun is uncased and unloaded, but the ammunition is immediately accessible; or the person doesn’t have a state Firearm Owner’s Identification Card.

The seven-page University of Chicago Crime Lab report referenced in this press article is available at this link (which a kind and helpful reader sent my way).  

In addition, John Maki, Executive Director of the John Howard Association of Illinois, has authored a lengthy response here to the UC Crime Lab report titled "Mandatory Minimums Will Not Solve Chicago’s Epidemic of Gun Violence: A Response to the University of Chicago Crime Lab’s Support of HB2265." Here is how this interesting reponse starts and ends:

As Illinois’ only non-partisan prison watchdog, the John Howard Association (JHA) believes that the state needs to do everything in its power to use evidence-driven laws, policies, and practices to address Chicago’s epidemic of gun violence. This must include the appropriate use of the state’s prison system, particularly for the serious offense of illegal gun possession. However, as we debate how we should use prison, we should do so with a clear understanding that the deeper we send a person into the justice system, the more we trade the possibility of the long-term benefit of rehabilitation for the short-term effect of incapacitation....

JHA opposes HB2265 because we agree with the consensus of experts and practitioners who have found that the wise use of judicial discretion is more effective at preventing crime than mandatory minimum sentences. At the same time, it is clear that Mayor Emanuel’s administration and its supporters will continue to lobby for HB2265. JHA would therefore like to recommend two amendments.  First, as supporters have argued that the costs of HB2265 will be minimal and that mandatory minimums could even save taxpayer money by deterring crime, JHA proposes that the City of Chicago should pay for the costs of increased incarceration that stem from the bill, which would otherwise fall entirely on the state. Second, if supporters believe that the law will work, they should demand a three-year sunset be placed upon the bill.  This would allow analysts to isolate and evaluate its impact. In three years, if the evidence shows that HB2265 works in the way that the Crime Lab argues it will, no one will oppose re-authorizing it, including JHA.

October 14, 2013 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Saturday, October 12, 2013

Audio of Sixth Circuit en banc Blewett oral argument available (and drinking game suggestion)

I have been busy and distracted by a variety of work (and non-work) activities ever since attending the remarkable Sixth Circuit en banc Blewett oral argument concerning crack sentencing modifications, and I have not wanted to write up my thoughts on the argument until I had a big block of time to devote to the task.   Ergo, I expect I will be posting commentary on the oral argument in this space sometime toward the end of this weekend.

In the meantime, thanks to the tech-friendly Sixth Circuit website, everyone can listen to an audio recording of Wednesday afternoon's hour-long argument via this link. I encourage everyone interested in these issues to take time to listen to the recording.  (And, if one is eager to make the listening experience even more exciting, I would recommend using the audio as a drinking game during which a listener must take a big drink every time someone says "Professor Berman."  The brief I helped file on behalf of the NACDL, which is discussed and linked via this prior post, was subject to discussion during the argument even though there was, disappointingly, very little focused consideration of the Eighth Amendment jurisprudence I stressed in that brief.)

October 12, 2013 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, October 10, 2013

US District Judge Gleeson assails DOJ use of MM sentencing threats to force pleas

Regular readers have of late become familiar with the remarkable series of opinions being issued by US District Judge John Gleeson in which he forcefully expresses his deep concerns with how federal prosecutors can and will use mandatory minimum sentencing provisions to distort the operation of the federal criminal justice system. Judge Gleeson's latest opinion in this series was handed down yesterday in US v. Kupa, No. 11-CR-345 (E.D.N.Y. Oct. 9, 2013) (available for download below), and its full 60 pages are must-read material for federal sentencing fans. The opinion can not be easily summarized, but its conclusion provide a flavor of what comes before:

I sentenced Lulzim Kupa to a 132-month term of imprisonment for a variety of reasons. The most important by far was because I could, that is, I was not required to impose a sentence of life in prison for his nonviolent drug trafficking offense. And the only reason for that is Kupa buckled under the enormous pressure that looming sentence placed on him.  The prior felony information ushered that 800-pound gorilla into the case at the eleventh hour and it took the case over.  Once it was filed, everything that followed was done with all eyes on the draconian sentence that a jury’s verdict of guilty would require me to impose.  It snuffed out an imminent trial at which Kupa wanted to do what our Constitution and Bill of Rights guarantee him: hold the government to its burden of proving him guilty beyond a reasonable doubt.  And indeed the desire to snuff out that trial was reason the sole reason the prosecutor filed it.

Throughout, I have assumed that both the drug offense mandatory minimums and the onerous enhancements triggered by prior felony informations are here to stay, at least in some form. After all, as a circuit judge wrote in 2009, “[t]he Judicial Conference of the United States for almost 20 years, and the Sentencing Commission for almost 10 years, have pleaded with the judiciary committees of Congress to do something about the serious injustices that these long, mandatory minimum sentences impose -- to no avail.” [footnote citing Gonzalez-Ramirez, 561 F.3d at 31 (Merritt, J., concurring).] I have also assumed the constitutionality of using prior felony informations as bludgeons in federal prosecutors’ efforts to get defendants to plead guilty.  But arguing that it is not illegal for prosecutors to use prior felony informations to produce the guilty pleas and sentences described above is no way to defend such a wayward policy.  Attorney General Holder’s admirable leadership toward sentencing reform should lead him to refocus his attention on prior felony informations.  If DOJ cannot exercise its power to invoke recidivist enhancements in drug trafficking cases less destructively and less brutally, it doesn’t deserve to have the power at all.

Download US v Kupa statement of reasons final

Some prior posts noting Judge Gleeson's recent sentencing opinions:

October 10, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (32) | TrackBack

Thursday, October 03, 2013

Guess which state has the highest rate of incarceration of black men in the entire US?

Click through to see the somewhat surprising answer...

This NPR story answers the question in the title of this post.  The piece is headlined "Wisconsin Prisons Incarcerate Most Black Men In U.S.," and it starts this way:

The United States prison population is still the world's highest, with more than 1.5 million people behind bars. Black men are more likely to be sent to prison than white men, and often on drug offenses. A study from the University of Milwaukee-Wisconsin looked at that state's incarceration rates and found they were the highest in the country for black men.

The University of Wisconsin researchers say their analysis was truly eye-opening. They found that Wisconsin's incarceration rate for black men — 13 percent — was nearly double the country's rate.

"We were so far above everybody else. That just sort of stunned us when we saw that," says Professor John Pawasarat, who studied two decades of Wisconsin's prison and employment data.

Pawasarat found that nearly 1 in 8 black men of working age in Milwaukee County had served some time in the state's correctional facilities. At 13 percent, the rate was about 3 percentage points above Oklahoma's — the state with the second highest rate of incarceration for black males. (Gene Demby wrote about this same topic and noted that Wisconsin also has the highest rate of Native American men who are behind bars. One in 13 Indian men are incarcerated.)

October 3, 2013 in Mandatory minimum sentencing statutes, Race, Class, and Gender, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (4) | TrackBack

Friday, September 27, 2013

Judge Weinstein quickly responds to Second Circuit reversal of his below-mandatory-minimum child porn sentencing

Thanks to How Appealing here, I have just seen that Judge Jack Weinstein wasted little time in responding to the ruling yesterday by the Second Circuit in US v. Reingold (discussed here) that Judge Weinstein had erred when sentencing a young defendant who distributed child pornography below the applicable five-year mandatory minimum term based on the Eighth Amendment. Judge Weinstein's response appears in this nine-page Memorandum and Order, which gets started this way:

This case exemplifies the sometimes unnecessary cruelty of our federal criminal law. The Court of Appeals for the Second Circuit has ordered — pursuant to statutes it held binding — that defendant’s prison term be increased substantially; another 30 months must now be added to the term reluctantly imposed by the district court of 30 months in a prison medical treatment center — an additional period likely to be spent in the general prison population. See United States v. Reingold, No. 11-2826-cr (2d Cir. Sept. 13, 2013) (order reversing in part as to sentencing and remanding); United States v. Reingold, No. 11-2826-cr (2d Cir. Sept. 26, 2013) (opinion of the court remanding for resentencing). Such a long sentence is unjust.

After release from prison, C.R. will be severely restricted as a convicted sex offender in where, and with whom, he can live, work and recreate for up to life.  See 42 U.S.C. §§ 16911, 16915(a)(1), 16915(b); N.Y. Correct. Law § 168-h(1); Judgment of Conviction, United States v. C.R., No. 09-CR-155 (E.D.N.Y. Jun. 21, 2011), ECF No. 157; cf. Michael Schwirtz, In 2 Trailers, the Neighbors Nobody Wants, N.Y. Times, Feb. 5, 2013, at A1 (discussing the lack of permissible, housing for “sex offenders”).

The effect of harsh minimum sentences in cases such as C.R.’s is, effectively, to destroy young lives unnecessarily.  The ancient analog of our modern destruction of youngsters by cruel, unnecessarily destructive and self-defeating, long minimum prison sentences, was physically sacrificing them to ancient gods for the supposed benefit of society.  Leviticus 18:21 (King James ed.) warns, “[T]hou shalt not let any of thy [children] pass through the fire to Molech.”  See W. Gunther Plaut et al., The Torah: A Modern Commentary, 149 n.1, 883 (1981) (ancient human sacrifice of children); Maimonedes Mishneh Torah, 116 (Rabbi Eliyahu trans. with commentaries and notes, Moznaim Publ’g. Corp. 2001) (“[A] person who gives his descendants to Molech” is executed by stoning.).  And a pillar of major religions is the banning of the sacrifice of children. Genesis 22:12-13; see Plaut et al., at 149 (“[R]eligion . . . rejects the sacrifice of a [mortal] son . . . .”). Yet we continue using the criminal law to unnecessarily crush the lives of our young.

An important duty of an Article III district judge is to prevent injustices by the government in individual cases.  See United States v. Ingram, 2013 WL 2666281, at *14 n.9 (2d Cir. June 14, 2013) (Calabresi, J. concurring) (“[W]e judges have a right — a duty even — to express criticism of legislative judgments that require us to uphold results we think are wrong.” (footnotes and citations omitted)); Charles E. Wyzanski, Jr., A Trial Judge’s Freedom and Responsibility, 65 Harv. L. Rev. 1281, 1303 (1952) (“clearly ethical in its nature”); Jack B. Weinstein, Every Day Is A Good Day for A Judge To Lay Down His Professional Life for Justice, 32 Fordham Urb. L. J. 131, 155 (2004) (“The judge must decide: does this law violate the essence of my duty to . . . humanity.”).  Where, as here, in the opinion of a ruling appellate court, the trial court has exceeded its power, at least the matter has been brought to the government’s and public’s attention, so that in due course, in our caring democracy, future injustices of this kind will be avoided.

Recent related post:

September 27, 2013 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (35) | TrackBack

Thursday, September 26, 2013

Second Circuit reverses below-mandatory-minimum sentence for distributing child pornography

The Second Circuit via a lengthy panel decision today in US v. Reingold, No. 11-2826 (2d Cir. Sept. 26, 2013) (available here), reverses a decision by Judge Jack Weinstein to sentence a young defendant who distributed child pornography below the applicable five-year mandatory minimum term based on the Eighth Amendment.  Here is how the majority opinion gets started:

Corey Reingold pleaded guilty in the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge) to one count of distributing child pornography.  See 18 U.S.C. § 2252(a)(2).  The United States now appeals from that part of the June 21, 2011 judgment of conviction as sentenced Reingold to 30 months’ incarceration. The government contends that the district court erred in refusing to impose the minimum five-year prison term mandated by 18 U.S.C. § 2252(b)(1) on the ground that applying such a punishment to this immature 19-year-old defendant would violate the Cruel and Unusual Punishment Clause.  See U.S. Const. amend. VIII. The government further disputes the district court’s Sentencing Guidelines calculations. The district court explained its sentencing decisions both on the record and in a 401-page opinion accompanied by 55 pages of appendices.  See United States v. C.R., 792 F. Supp. 2d 343 (E.D.N.Y. 2011). Having carefully reviewed that opinion, the applicable law, and the record as a whole, we conclude that the district court erred in both respects identified by the government.  We therefore remand the case to the district court with directions that it vacate the sentence and resentence the defendant consistent with this opinion.

I will not have a chance to review closely the 56 pages of Reingold until late tonight, though a quick skim suggests this ruling is a must-read for any and everyone working on sentencing issues in child pornography cases in the federal courts. 

September 26, 2013 in Mandatory minimum sentencing statutes, Offense Characteristics, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (26) | TrackBack

New trial granted for defendant subject to long mandatory sentence in Florida "warning shot" case

As reported in this news report, headlined "Marissa Alexander will get a new trial," today there was a notable development in a notable Florida criminal case that garnered some additional attention in the wake of the George Zimmerman prosecution. Here are the basics:

Marissa Alexander, the African-American woman who was sentenced to 20 years for discharging a firearm in Florida despite pleading Stand Your Ground against her husband, will get a new trial. Alexander, 32, said she fired a bullet at the ceiling because she was afraid of her husband. No one was injured. It took 12 minutes for the jury to convict her.

“We reject her contention that the trial court erred in declining to grant her immunity from prosecution under Florida’s Stand Your Ground law,” wrote Judge James H. Daniel, “but we remand for a new trial because the jury instructions on self-defense were erroneous.”

Alexander, who had given birth the week before, testified that after an altercation regarding texts from her ex-husband, she locked herself in the bathroom. Her husband Rico Gray broke through the door, grabbed her by the neck, and shoved her into the door. She ran to the garage, found she couldn’t get the door open, and returned with a gun. When Gray saw the gun, he said, “Bitch, I’ll kill you.” Alexander testified that firing the gun into the air as a warning shot was “the lesser of two evils.”

The jury rejected her self-defense argument, and instead Alexander was sentenced under the “10-20-Life” law, which carries a series of mandatory minimum sentences related to gun crimes. The prosecutor in her case was Angela Corey, who also prosecuted George Zimmerman who was acquitted in the death of Trayvon Martin....

The appeals court judge ruled that the lower court judge improperly put a burden on Alexander to prove that the firing was in self-defense. “The defendant’s burden is only to raise a reasonable doubt concerning self-defense,” Daniel wrote. “The defendant does not have the burden to prove the victim guilty of the aggression defended against beyond a reasonable doubt.” He ordered a retrial. A separate proceeding would determine whether Alexander could be released on bail pending that trial.

The relatively short opinions in this case (a majority opinion and a concurrence) can be accessed at this link.

Prior related posts:

September 26, 2013 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

Wednesday, September 25, 2013

Does Senator Ted Cruz agree with GOP Senators Mike Lee and Rand Paul about the need for federal sentencing reform?

Senator Ted Cruz is the man of the political moment, in part because, as of this writing as reported here, he is now in his 20th hour of "speaking on the Senate floor without so much as a bathroom break to interrupt his symbolic demonstration against Obamacare." And while his high-profile efforts in opposition to recent federal health care reforms has helped make him the darling of political right, the question in the title of this post concerns whether Senator Cruz on federal criminal justices issue shares the reform-oriented views of other two others Senators who have been favorites of the tea-party wing of the GOP, namely Mike Lee and Rand Paul.

As regular readers know, Senator Lee is a co-sponsor of S. 1410, the Smarter Sentencing Act, and Senator Paul is the co-sponsor of S. 619, the Justice Safety Valve Act. Though these bills differ in various respects, both would bring big significant changes to the operation of the federal sentencing system. And both are indisputably getting huge political boosts (and clearing space for lots of other federal sentencing reform discussions and developments) because Senator Lee and especially Senator Paul has become active proponents for federal criminal justice reforms.

I have an inkling that, despite Senator Cruz's disaffinity for the GOP establishment in other respects, he is generally more inclined to favor the GOP establishment perspective (generally favoring big federal government and executive power) on criminal justice issues than the tea party perspective now well represented by Senators Lee and Paul.   And yet, Senator Cruz's home state of Texas has actually been a leader in recent years on state-level "smart on crime" reforms, and I suspect while serving as State Solicitor in Texas he saw some of the benefits of developing cost-effective, criminal punishment alternatives to imprisonment.  Indeed, I would expect that Senator Cruz's Texas experiences and his broader political philosophy should lead him to favoring placing more limits on the reach and power of the federal criminal justice system in order to enable states to develop more innovative, nimble and cost-effective local approaches to combatting crimes and imposing punishment while maximizing liberty and commitments to core constitutional values.

Though a member of the US Senate Committee on the Judiciary, I cannot find on Senator Cruz's official website any detailed discussion of federal criminal justice issues.  I want to believe that Senator Ted Cruz agrees with Senators Mike Lee and Rand Paul about the need for federal sentencing reform, and that he might even at some point dedicate his resources and rhetoric toward supporting criminal justice reform efforts being sponsored by his tea-party-oriented GOP colleagues.  But perhaps others who know Senator Cruz's record or rhetoric better than I do might have a more informed understanding of just where he now stands on these (somewhat) distinct issues of federal government growth and power.

Some recent and older related posts:

September 25, 2013 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, September 21, 2013

"(Ad)ministering Justice: A Prosecutor's Ethical Duty to Support Sentencing Reform"

The title of this post is the title of this (quite timely) new article now available via SSRN and authored by R. Michael Cassidy. Among the reasons this article is notable is because its author was a state prosecutur for nearly a decade. Here is the abstract:

This article stakes out an ethical argument in favor of prosecutorial leadership on sentencing reform. Prosecutors have a duty as “ministers of justice” to go beyond seeking appropriate conviction and punishment in individual cases, and to think about the delivery of criminal justice on a systemic level ― promoting criminal justice policies that further broader societal ends.  While other authors have explored the tensions between a prosecutor’s adversarial duties and “minister of justice” role in the context of specific litigation, few have explored what it means to be an “administer” of justice in the wider political arena.  The author sets forth a new construct of what is required for a prosecutor to be a neutral, nonpartisan “administer of justice” in her legislative and public advocacy activities.

Applying this paradigm to the ongoing national debate about sentencing reform, the author argues that a prosecutor’s administrative responsibilities as a leader in the criminal justice establishment and her fiduciary responsibilities as a representative of the sovereign should compel her to join in the effort to repeal mandatory minimum sentencing provisions for most drug and non-violent offenses.  Not only are mandatory sentences in most instances unduly harsh, coercive, and inefficacious, but they allow for an arbitrary and discriminatory application that is essentially unreviewable by courts.  The author distinguishes this argument against mandatory minimum penalties from the so-called “Smart on Crime” movement, by grounding a prosecutor’s duty to promote sentencing reform in ethical reasoning as opposed to pragmatic or cost-savings considerations.

Even with robust political support from some of this nation’s most conscientious prosecutors, state legislatures are unlikely to repeal or cut back on all mandatory minimum sentences.  Some mandatory prison terms ― for crimes such as murder, repeat offense OUI, and aggravated sexual offenses — will likely stay on the books notwithstanding the advocacy recommended above.  A second question the author addresses in this article is how an ethical prosecutor should make plea bargaining decisions in the face of mandatory minimum prison terms retained by the legislature.  While there has been substantial legal scholarship to date that has decried the manner in which mandatory minimum penalties have transferred sentencing discretion from judges to prosecutors, beyond that descriptive lament there has been very little attention paid to how exactly prosecutorial discretion might be more meaningfully constrained through internal self-regulation. Prosecutors can mitigate many of the harsh and unjust consequences of mandatory minimum sentences by instituting and publishing clear office policies governing when line prosecutors may dismiss or reduce charges that carry them.  The author proposes specific guidelines that state prosecutors should adopt to ensure a consistent and even-handed application of mandatory minimum penalties, so that line prosecutors do not abuse the substantial discretion that has been afforded them in the plea bargaining process.

Based on this abstract, I surmise that the author would assert not merely that Attorney General Holder's recent policy changes concerning charging practices in drug cases was a good idea, but that they were ethically required. I hope to see discussion of prosecutorial ethics among prosecutors in the comments to this post.

Some recent and older related posts:

September 21, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Thursday, September 19, 2013

"Holder directs attorneys to seek reduced sentences in pending drug cases"

The title of this post is the headline of this Washington Post report on the latest announcement from AG Eric Holder concerning federal drug prosecution policies. Here is how the article starts:

Attorney General Eric H. Holder Jr. said Thursday that he has directed U.S. attorneys across the country to apply new sentencing guidelines to ongoing drug cases so that low-level, nonviolent offenders will not face severe mandatory sentences.

The new guidelines will be applied to suspects who have been charged but not yet put on trial, as well as to individuals who have been convicted but not yet sentenced. The directive does not affect offenders already sentenced or serving time in prison.

Holder announced last month that low-level, nonviolent drug offenders would no longer be charged with offenses that impose severe mandatory sentences. The new directive marked an expansion of that effort.

“I am pleased to announce today that the department has issued new guidance to apply our updated charging policy not only to new matters, but also to pending cases where the defendant was charged before the policy was issued but is still awaiting adjudication of guilt,” Holder said in a speech to the Congressional Black Caucus.

AG Holder's full speech to the Congressional Black Caucus Foundation Criminal Justice Issues Forum is now available at this link, and here are some additional excerpts:

America’s criminal justice system is in need of targeted reform. Throughout this country, too many Americans are trapped – and too many communities are weakened – by a vicious cycle of poverty, criminality, and incarceration. Too many people go to too many prisons for far too long – and for no truly good law enforcement reason. The U.S. prison population has grown at an astonishing rate over the last three decades – by almost 800 percent since 1980, despite the fact that America’s overall population has increased by only about a third. As we speak, more than 219,000 federal inmates are currently behind bars. Almost half are serving time for drug-related crimes. And many have substance use disorders.

Outside of the federal system, an additional nine to 10 million people cycle through local jails each year. And roughly 40 percent of former federal prisoners – along with more than 60 percent of former state prisoners – are rearrested or have their supervision revoked within three years after their release, at great cost to American taxpayers.

It’s clear, in a broad sense, that 20th-century criminal justice solutions are just not adequate to address the 21st century challenges we face. There’s no question that incarceration will always have a role to play in our criminal justice system. But there’s also no denying that widespread incarceration at the federal, state, and local levels imposes significant human and moral costs – as well as a tremendous economic burden, totaling $80 billion in 2010 alone.

Especially in times of widespread budgetary difficulties and federal sequestration – when leaders at every level of government have been asked to do more with less – we must resolve, as a country and as a people, to do much better....

It’s time – in fact, it’s well past time – to take a fundamentally new approach. And today, I am proud to join you in working to ensure that – in this area and many others – the scales of justice find a more appropriate balance....

In addition – in recent months – the Justice Department also has updated its framework for considering compassionate release for some inmates who face extraordinary or compelling circumstances, and who pose no threat to the public. Of course, as our primary responsibility, we must ensure public safety. But considering the applications of certain people with convictions for nonviolent offenses – such as individuals seeking release on medical grounds, or elderly inmates who did not commit violent crimes and have served significant portions of their sentences – is the right thing to do. It is the smart thing to do. And it will allow the Bureau of Prisons to evaluate compassionate release applications through a careful review process before each case comes before a judge – who will make a final determination on whether release is warranted.

September 19, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10) | TrackBack

Linda Greenhouse reflects on changing crime culture changing SCOTUS jurisprudence

Winds-of-changeLinda Greenhouse's new commentary piece at the New York Times "Opinionator" blog is focused on crime and punishment issues. The lengthy piece, headlined "Winds of Change," is worth a full read and here are excerpts:

Back in 1991, the Supreme Court upheld a Michigan man’s prison sentence of life without the possibility of parole for possessing more than 1.5 pounds of cocaine.  The sentence did not represent the third strike of a three-strikes law: the prisoner, Ronald A. Harmelin, 45, had no previous criminal record.  The police found the drugs when they stopped him for running a red light.  Since simple possession was enough to trigger Michigan’s mandatory life-without-parole sentence, the prosecution didn’t even have to bother trying to prove that Mr. Harmelin intended to sell the cocaine.

In upholding the sentence, the court rejected the argument that it was so disproportionate to the crime as to violate the Eighth Amendment’s prohibition on cruel and unusual punishment.  The three justices who then occupied the middle of the court (yes, there was a multi-justice middle back then) — Anthony M. Kennedy, Sandra Day O’Connor and David H. Souter — voted with the 5-to-4 majority.

In “Five Chiefs,” the very interesting (and underappreciated) Supreme Court memoir he published in retirement, Justice John Paul Stevens reflected on the Harmelin decision, from which he dissented.  Those three justices were all relatively new to the court at the time, he wrote.  The justices they had replaced — Lewis F. Powell Jr., Potter Stewart and William J. Brennan Jr. — were all long-serving veterans who Justice Stevens speculated would have voted to invalidate the sentence.  It may be, he added, that “the views of individual justices become more civilized after 20 years of service on the court.”

That was an intriguing thought, and when I had a chance last year to interview Justice Stevens, I asked him to say more.  He said he still thought about the case “a lot.”  He was “quite sure” that Justice Kennedy would come to the opposite conclusion today, and that the other two probably would as well if they were still on the court.  Nonetheless, he added, “the precedent is still there, and it’s really a very unfortunate case.”

I’ve been thinking a lot myself about the Harmelin decision in light of recent events.  First there was the announcement last month by Attorney General Eric H. Holder Jr. that the Justice Department was revising its prosecution strategy in order to avoid the impact of mandatory minimum sentences for low-level drug offenses.  That was followed by the announcement that the federal government wouldn’t sue to block state laws that have legalized marijuana for medical or recreational use.  Either policy shift would have been greeted with amazement not too many years ago, but neither provoked anything approaching a fuss....

Something is clearly in the wind.  I’ve also been thinking about the New York City mayoral primary.  It’s impossible to read the election outcome as other than, at least in part, a public repudiation of the Bloomberg administration’s law-enforcement policies, particularly the administration’s embrace of stop-and-frisk. Mayor Michael R. Bloomberg not only denounced Federal District Judge Shira A. Scheindlin’s ruling last month that stop-and-frisk as the police were using it was unconstitutional, but he also attacked the judge herself as an “ideologically driven” judicial activist.

Unlike the days when politicians could score easy points by attacking courts as soft on crime, however, the mayor got no traction.  Bill de Blasio, the Democratic primary winner, ran as the non-Bloomberg, making opposition to stop-and-frisk a centerpiece of his campaign.  An exit poll indicated that black New Yorkers and white New Yorkers were equally supportive of Mr. de Blasio, who also received nearly identical support across the income spectrum — a fascinating development.  People so often separated by race and class, seemed to unite around the conclusion that enough was enough.

The question is what this shift in public attitudes might mean for the courts, the Supreme Court in particular.  The Supreme Court operates inside the mainstream culture — which is, after all, where the justices live — influenced not by the “weather of the day” but by the “climate of the age,” as Justice Ruth Bader Ginsburg likes to say, quoting the great constitutional scholar Paul Freund....

In his reflection on the Harmelin decision, Justice Stevens offered the tantalizing idea that longevity on the bench makes justices “more civilized.”  Can that prediction apply not only to individual members of the court, but also to the court as a whole?  As the Roberts court begins year nine, that may be a distant hope, but one worth clinging to.

The recent SCOTUS Eighth Amendment rulings in Graham and Miller reflect, in my view, the impact of these "winds of change." But it remains to see whether and when these winds will blow hard enough to knock over the problematic precedent set by the Harmelin decision 22 years ago.

September 19, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (23) | TrackBack

Wednesday, September 18, 2013

Scott Burns from National District Attorneys Association makes the prosecutors case for mandatory minimums

The Senate Committee on the Judiciary hearing entitled “Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences” is now underway as I write up this post.  A live webcast can be accessed via this Senate webpage, which is also where the written testimony of all the witnesses are now linked.   Not surprisingly, the only written statement supporting the mandatory minimum status quo from among the scheduled witnesses is made by Scott Burns, the Executive Director of the National District Attorneys Association (NDAA), and here is the heart of his written presentation:

Prosecutors have many tools to choose from in doing their part to drive down crime and keep communities safe and one of those important tools has been mandatory minimum sentences. While Federal mandatory minimum sentences sometimes result in outcomes that seem harsh, the vast majority of those cases are the result of a defendant that rejected plea negotiations, went to trial, and then received the sentence he or she said would be mandatory if convicted by a jury or judge. In addition, mandatory sentences have been extremely helpful to state and local prosecutors as leverage to secure cooperation from defendants and witnesses and solve other crimes or, in a drug distribution case, “move up the chain” and prosecute those at higher levels of sophisticated trafficking organizations; it is a tool that has been used sparingly but effectively by state and local prosecutors.

I submit that prosecutors across the country collectively shook their heads when General Holder directed his United States Attorneys to no longer prosecute or send to prison those who are first time offenders or those who have committed low level drug offenses. US Attorneys have never, to my knowledge, prosecuted low level offenses and, unless it is a serious case and often must involve a firearm, first time offenders do not go to prison.  The prosecutors I know in America look at every available alternative before recommending that a person be sentenced to prison and, as such, are incensed by General Holder’s repetitive statements that America’s prisons are full of low-level drug offenders and non-violent offenders and first time offenders. That is a myth that must be dispelled if we are going to work together to try and make a great criminal justice system even better.  Unless it is a murder or rape or violent offense, it is difficult to be sentenced to prison in state courts across America.  The prosecutors I know look at probation, treatment programs, diversion, plea in abeyance, Drug Courts, supervised probation and work with Judges and defense counsel to look at every alternative but prison.  It is only in those instances where someone has committed a terribly serious crime or, after repeated attempts to stop the person from reoffending — sometimes literally six and seven violations of probation — that an offender is sentenced to prison. And the reality is, together with other tools like mandatory minimum sentences, it has worked. So for anyone to say that our prisons are full of low-level, first time, minor drug offenders simply could not be further from the truth.

Prosecutors will tell you that it is a very small percentage of offenders that commit the vast majority of crimes, people who insist no matter what we do to change their behavior, commit crime after crime.  Is it not appropriate, after all attempts have failed, or in the event the person commits a very serious offense, to sentence them to longer prison terms which has inarguably resulted in lower crime rates and safer communities?

A prosecutor told me the other day, after reading General Holder’s statements, “to me, I see this as we are three touchdowns ahead and many are now saying we should take out some of our best players — and mandatory minimum sentences are one of our best players”.  Why now, with crime at record lows are sweeping changes being suggested? Why now, as we are getting even smarter on crime with programs like Drug Courts, 24/7 and Project Hope as carrots would we take away one of the most effective sticks?

NDAA continues to be willing to work with Congress and the Department of Justice, as we did when we worked together to address the crack/powder sentencing disparity with the Fair Sentencing Act, and on several other Congressional initiatives that have been proposed over the years; but if this is solely about money, that the number of people we incarcerated in America is too expensive, then I know I speak for Police Chiefs, Sheriffs, law enforcement officers at every level and prosecutors in saying that crime will go back up and we may very well be back to the “catch and release” days of old, which many would tell you didn’t really save money at all when the costs of investigations and prosecutions of those that reoffend are analyzed.

I will not seek to refute all the points made in this statement (some of which are plainly inaccurate), but I will note the peculiarity of having someone mostly talk up state imprisonment and sentencing policies as part of a hearing focused on "Reevaluating the Effectiveness of Federal Mandatory Minimum Sentences."  More importantly, it is important to recognize that this statement does not really engage or even address the justice or fairness or even cost concerns stressed by the critics of federal mandatory minimums (not does it make claims about the rule of law). 

The essence of this defense of mandatory minimums is these mandated prison sentences have been prosecutors' "best player" in fighting the drug war and the broader war on crime.  In the end, I am pleased to see a state prosecutor here making an honest and straight-forward and relatively simple claim that the crime control ends are worth the mandatory minimum means.  And, candidly, if crime was still at levels that we saw 20 years ago, I might share this view.  But I think even fans who get excited by huge wins by their favorite team still believe it is more fair, more humane and ultimately more effective in the long-term to stop beating up on the other team with "the most effective sticks" once they are up three touchdowns.  And that is why I think it is time to see the federal prosecution team have to try to "running up the score" against serious crime at a lower human and economic costs than is currently being endured.

A few recent related posts:

September 18, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (55) | TrackBack