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

Wednesday, April 02, 2014

"Law Enforcement Lobby Quietly Tries To Kill Sentencing Reform"

The title of this post is the headline of this notable new Huffington Post piece.  Here are excerpts:

Several organizations representing state and local law enforcement are quietly trying to kill a bipartisan bill that would roll back tough mandatory sentences for people convicted of federal drug offenses under legislation passed during the height of America’s drug war three decades ago.

These groups include the National Sheriffs' Association, the International Association of Chiefs of Police, the National Narcotic Officers' Associations' Coalition, the National Association of Police Organizations and the Major County Sheriffs' Association, The Huffington Post has learned.

They hope to weaken congressional support for the Smarter Sentencing Act, which would reform the nation's mandatory minimum statutes, authorizing federal judges to sentence drug defendants to less time behind bars than what current law requires. The legislation passed the Senate Judiciary Committee in January, when, in a rare instance of bipartisan collaboration these days, Republicans Mike Lee of Utah, Ted Cruz of Texas and Jeff Flake of Arizona joined the committee’s Democrats in supporting the measure. Its House counterpart is still sitting in committee....

Major drug dealers “need to be locked up somewhere,” [Bob] Bushman [president of the National Narcotic Officers' Associations' Coalition, one of the groups fighting the bill] told HuffPost. “Some of these folks have worked hard to get to prison."...

A number of law enforcement agencies have already joined advocacy groups like the ACLU in endorsing the bill. They include the Major Cities Chiefs Association, the International Union of Police Associations, the American Correctional Association, the International Community Corrections Association and the American Probation and Parole Association. Attorney General Eric Holder backs the measure as well.

Bushman and his allies, however, aren’t the first law enforcement advocates to speak out against the bill. The Federal Law Enforcement Officers Association and the National Association of Assistant United States Attorneys have also come out against federal sentencing reform in recent months. Unlike Bushman’s cohorts, both of these groups represent officials who work for the federal government, and both have stated their positions in public.

The National Narcotic Officers' Associations' Coalition, the National Sheriffs' Association and the other state and local groups have been working behind the scenes. Several of them had previously lined up against Debo Adegbile, the president's nominee to head the Justice Department's Civil Rights Division, and helped block his confirmation last month.

Lobbyists with the National Association of Police Organizations and other groups met with Sens. Dianne Feinstein (D-Calif.), Kay Hagan (D-N.C.), Amy Klobuchar (D-Minn.) and John Walsh (D-Mont.) to discuss their opposition to the reform package. A spokeswoman for the International Association of Chiefs of Police confirmed that the organization was lobbying against changes on Capitol Hill, but said it wasn't prepared to speak publicly on the topic.

Fred Wilson, an official with the National Sheriffs' Association, said his group isn't formally opposed to the legislation in principle but believes the bill needs more study -- even though it has already passed through the Senate Judiciary Committee. "It may be [late], but our legislative folks seem to think not all is lost," Wilson said.

A letter from Bushman and his group to Senate Majority Leader Harry Reid (D-Nev.) and Senate Minority Leader Mitch McConnell (R-Ky.) -- just one of several letters written by the Smarter Sentencing Act opponents that Bushman said are floating around Capitol Hill -- argues that federal policy should not be driven by "second-order effects of America’s drug problem" like incarceration costs....

Bushman said it was "a little early" to talk about whether law enforcement groups could be won over with a compromise bill this time, but said members of Congress first need to look at the "broader implications" of rolling back mandatory minimums. Democratic congressional aides acknowledged that they have been speaking with a number of law enforcement groups about the bill and said they hoped some of the concerns raised would be addressed, but likewise noted it was still relatively early in the legislative process.

April 2, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (32) | TrackBack

"Two church leaders urge Senate to pass Smarter Sentencing Act"

The title of this post is the headline of this article from what appears to be a prominent Catholic newspaper. Here are excerpts:

Two Catholic leaders called on the U.S. Senate to pass the Smarter Sentencing Act, which would reform rigid sentencing policies for certain nonviolent drug offenders. Archbishop Thomas G. Wenski of Miami, chairman of the U.S. bishops' Committee on Domestic Justice and Human Development, and Father Larry Snyder, president of Catholic Charities USA, said in a March 27 letter to senators that tough minimum sentences "are costly, ineffective and can be detrimental to the good of persons, families and communities." They called the bill a "modest first step in reforming our nation's broken sentencing policies."

The bill would cut minimum existing sentences by half and allow judges to use discretion when imposing jail terms against lower-level offenders. The legislation also would permit crack cocaine offenders to seek lighter sentences if they were jailed under the Fair Sentencing Act of 2010. The bill's supporters tout it as a necessary first step to reduce overcrowding in prisons and begin whittling down the massive cost of incarceration.

Despite supporting the bill, Archbishop Wenski and Father Snyder questioned three new categories of mandatory sentencing minimums that were added to the original bill, saying they would not ease prison overcrowding or reduce costs. The new categories cover sexual assault, domestic violence and arms trading....

Noting that annual incarceration costs for state and federal governments total about $80 billion annually, the clergymen wrote that it is time for the government to support programs aimed at crime prevention, rehabilitation, education and substance abuse treatment and as well as probation, parole and reintegration into society. "Our Catholic tradition supports the community's right to establish and enforce laws that protect people and advance the common good. But our faith teaches us that both victims and offenders have a God-given dignity that calls for justice and restoration, not vengeance," the letter said. 

The full letter referenced in this article is available at this link, and here is the closing paragraph:

Though imperfect, the Smarter Sentencing Act will help begin a long, overdue reform of our nation’s ineffective and costly sentencing practices.  Pope Francis recently said, “God is in everyone’s life.  Even if the life of a person has been a disaster, even if it is destroyed by vices, drugs or anything else — God is in this person’s life.”  We join the pope by advocating for reforms to our nation’s sentencing policies that will lead to healing and restoration, rather than simply punishment.

Though I am not sure this would be an entirely fair and accurate statement, I love that this last paragraph allows me to reasonably assert that wise religious leaders say "Pope Francis supports the Smarter Sentencing Act."  Indeed, maybe based on this letter I can even consider claiming that God supports the SSA (and, in so doing, provocativey and humorously speculate aloud about who is really behind the forces opposing the SSA).

April 2, 2014 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Tuesday, April 01, 2014

Forecasting the uncertain present and future of federal legislative sentencing reform

Writing for CQ Weekly (which calls itself the "definitive source for news about Congress") John Gramlich has this fascinating and lengthy new article about the state of federal sentencing reform efforts. The piece is headlined "The Prison Debate, Freshly Unlocked," and here are excerpts from a piece that merits a full read:

A bipartisan Senate coalition intent on shrinking the swollen federal prison population will see its toughest test yet in the weeks ahead. Party leaders face the delicate task of shepherding legislation through a politically charged chamber that could ease punishment for tens of thousands of felons — in an election year, no less.

The political stakes, particularly for Democrats, are substantial.  Control of the Senate is up for grabs in November and if Majority Leader Harry Reid of Nevada presses forward with a debate over crime and punishment, he could force members of his own caucus to cast difficult votes on a subject that has haunted the party in the past.  Many vulnerable Democrats want to focus on jobs rather than softening criminal penalties.

Despite the risks, it’s clear that Congress is closer than it has been in decades to slowing the growth of the federal prison population, which has ballooned to about 216,000 today from 25,000 in 1980.  Overhaul supporters have covered their bases, building consensus and deliberately pushing legislation through the committee process. But floor consideration will pressure any cracks in the coalition, given lingering reservations from influential lawmakers in both parties and opposition from prosecutors, which could stoke public fears about crime.

Reid has two bills on his slate, both of which would cut criminal penalties for a broad cross-section of federal offenses.  One would slash mandatory minimum sentences for some drug offenders by as much as 60 percent and give judges more leeway to impose lighter penalties than those set out in statute.  It also would allow crack cocaine users and dealers who were sentenced under a system that Congress abolished in 2010 to seek shorter sentences retroactively.

The other measure would allow as many as 34,000 currently incarcerated inmates — more than 15 percent of the federal correctional population — to leave prison early, provided they successfully complete rehabilitation programs first.

Both bills have support from opposite ends of the ideological spectrum, further undermining the decades-old caricature of party orthodoxy on criminal justice: that Republicans are “tough on crime” while Democrats are “soft.”...

Predicting the outcome of an election year Senate debate about criminal justice is not easy. Reid is still weighing whether to bring the legislation up in a year in which his party is at risk of losing control of the Senate for the first time since 2007.

And even if legislation passes the Senate, finding a path through the House is more difficult.  The House Judiciary Committee has set up a task force to examine sentencing and prison population issues.  But House leadership has, so far, shown no interest in taking up companion bills to the Senate measures. House Judiciary Chairman Robert W. Goodlatte, a Virginia Republican, said his panel “is taking a comprehensive look at the prison reform issue, and plans to continue its review over the next several months.”...

Lobbying from law enforcement organizations could still prove pivotal in this debate, particularly if it focuses on the specter of increased crime.  The sentencing bill sponsored by Durbin and Lee has sparked notable opposition from the National Association of Assistant U.S. Attorneys, a prosecutors’ group that took the rare step of publicly breaking with Attorney General Eric H. Holder Jr. — their boss — to denounce the legislation and warn that it could endanger public safety....

Meanwhile, the Fraternal Order of Police ... has its own concerns about any proposals that might reduce time behind bars.  The group is still evaluating both bills.  “The argument that we hear most often for reducing the prison population is cost,” James Pasco, the executive director of the group’s legislative advocacy center, says.  “Well, you know, the fact of the matter is if somebody commits a crime serious enough for lengthy incarceration, it’s at variance with common sense to suggest that’s not a good penalty just because it costs too much.”

“We have had conversations with the administration and we’ve had conversations with both sides in Judiciary, and they are aware of our apprehensions [about the bills],” Pasco added. “But the game really begins now.”

Bipartisan opposition from a handful of holdouts could make for speed bumps on the floor, if not outright problems.  California Democrat Dianne Feinstein, a senior member of the Judiciary panel, warned that the early-release bill could endanger public safety because “we do not know the facts of any of the 34,000 inmates estimated to be affected by this bill.”

Judiciary Chairman Patrick J. Leahy, a Vermont Democrat, also withheld his support for the early-release bill by voting “present” in committee. Leahy expressed concerns that the measure, which would let lower-risk inmates earn credits allowing them to transfer from prison to halfway houses and other forms of supervision, could worsen “racial and socioeconomic disparities in our prison system” and place an unfunded mandate on the Bureau of Prisons by requiring the agency to do widespread risk assessments on the inmates it incarcerates.

Holder has endorsed the sentencing measure, but stopped short of endorsing the early-release proposal, telling the U.S. Sentencing Commission in March that it needs changes to make it “as good as it might be.”

The sentencing bill also faces likely amendments.  In an interview with CQ Roll Call, South Carolina Republican Lindsey Graham said he and fellow Judiciary member Charles E. Schumer, a New York Democrat, are working on an amendment that would scale back some of the bill’s sentencing reductions.

Republicans, for their part, are divided about whether they want both measures to reach the floor at all.  Tea-party-backed members such as Lee and Paul support both bills, but Cornyn and the ranking Republican on the Judiciary Committee, Charles E. Grassley of Iowa, represent the party’s establishment wing and support only the early-release measure.  “If Sen. Reid would take up the prison reform legislation, I think then it has a good chance of passing. It’s got good, strong bipartisan support,” Cornyn, the Senate minority whip, says. “If they’re going to try to pair it with the sentencing reform, I think that’s a problem.”

In the Senate, where opposition from even a single member can stop legislation dead, Alabama Republican Jeff Sessions is still evaluating his options to oppose both bills. Sessions, another member of the Judiciary Committee and a former federal prosecutor who helped broker a new law in 2010 to reduce sentencing disparities between crack and powder cocaine offenses, voted against both of the new proposals in committee.

“One of the reasons people want to reduce sentences is because the crime rate is down,” Sessions said. “They think that just happened. But a fundamental reason is we enhanced enforcement, we enhanced the likelihood that you’d be apprehended and actually convicted, and we enhanced the penalties.  I believe the changes in the law that they have proposed are larger and more impactful than the sponsors fully realize.”

Though I sincerely hope I am very wrong, I take away one fundamental message from this story (aided, in part, by reading between the lines): the real chance of passage of any significant federal sentencing or prison reform legislation this year seems slim, at best.

April 1, 2014 in Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (16) | TrackBack

Wednesday, March 19, 2014

"Efficiency shouldn’t trump effectiveness in drug sentencing"

The title of this post is the headline in the Washington Post given to this letter from lawprof Mark Osler in response to that paper's recent coverage of prosecutorial opposition to proposals for federal drug sentencing reform.  Here is the full text of the letter as published:

As a former federal prosecutor who now trains criminal lawyers, I read with great interest the March 13 front-page article “Prosecutors fight plan to lower drug sentences.”  At best, the objections by some federal prosecutors to sentencing reform ring hollow.  At worst, they echo that most unfortunate plea of employee organizations: Keep our jobs easy.

Mandatory minimums make it easy to plead a case out, eliminating the effort and expense of trial.  That efficiency is worthwhile if a problem is being solved, but there is no evidence that the mass incarcerations created by mandatory minimums solve any problem.  If they were working, the supply of illegal narcotics would constrict and the price would go up, but some narcotics are cheaper now than 30 years ago.

The anti-reformers argue that mandatory minimums “provide a critical tool to dismantle drug networks by getting cooperation from lower-level defendants and building cases that move up the criminal chain of command.”  It is a worthwhile argument, if true, but U.S. Sentencing Commission data have shown that the overwhelming majority of federal cocaine convicts are low-level actors — street dealers, couriers and the like.

Mandatory minimums do create efficiency.  But when that efficiency is primarily used to force pleas from low-level defendants without solving a problem, it is just bullying.

Some prior posts about federal prosecutorial perspectives on sentencing reform:

March 19, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Friday, March 14, 2014

"Some prosecutors fighting effort to eliminate mandatory minimum prison sentences"

The title of this post is the headline of this new Washington Post article highlighting that not all prosecutors agree with Attorney General Eric Holder about the need for significant sentencing reforms.  Here are excerpts:

Attorney General Eric H. Holder Jr.’s broad effort to eliminate mandatory minimum prison sentences for nonviolent drug offenders and reduce sentences for defendants in most drug cases is facing resistance from some federal prosecutors and district attorneys nationwide. Opponents of the proposal argue that tough sentencing policies provide a critical tool to dismantle drug networks by getting cooperation from lower-level defendants and building cases that move up the criminal chain of command....

Longer prison terms for more criminals have led to a significant decline in the crime rate over the past 20 years, these critics say, and they argue that Holder’s proposed changes are driven by federal budget constraints, not public safety. “Rewarding convicted felons with lighter sentences because America can’t balance its budget doesn’t seem fair to both victims of crime and the millions of families in America victimized every year by the scourge of drugs in America’s communities,” Raymond F. Morrogh, commonwealth’s attorney in Fairfax County and director at large of the National District Attorneys Association, testified Thursday to the U.S. Sentencing Commission....

The prospect of ending mandatory minimum sentences for drug offenses had drawn fire from the National Association of Assistant U.S. Attorneys, which has been lobbying senior lawmakers to try to prevent legislation that would change the system. “We believe our current sentencing laws have kept us safe and should be preserved, not weakened,” said Robert Gay Guthrie, an assistant U.S. attorney in Oklahoma and president of the prosecutors’ organization. “Don’t take away our most effective tool to get cooperation from offenders.”

The organization that represents line federal prosecutors has written letters to Holder, Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and Sen. Charles E. Grassley (Iowa), the panel’s ranking Republican, urging them not to change the sentencing rules. Guthrie said that 96 percent of about 500 prosecutors who were surveyed in an association poll did not support Holder’s plan.

But other assistant U.S. attorneys — as well as several who were interviewed — said the new guidelines would reduce prison overcrowding and would be more equitable to certain defendants who can face severe sentences under the current system. “It allows us to be more fair in recommending sentences where the level of culpability varies among defendants in a large drug organization, but where the organization itself is moving large quantities of drugs,” said John Horn, first assistant U.S. attorney in the Northern District of Georgia. “Before the new policy, every defendant involved with over five kilos of coke would be subject to a minimum 10 or 20 years, whether he was a courier, someone in a stash house, a cell head or an organizational leader, and those distinctions can be important.”

Or, as Neil MacBride, a former U.S. attorney for the Eastern District of Virginia, put it: Former Mexican drug lord “Chapo Guzman and some low-level street dealer in Richmond simply don’t pose the same existential threat to society.”...

Sally Yates, the U.S. attorney for the Northern District of Georgia, said any new system will require some period of adjustment. “This is a sea change for assistant U.S. attorneys,” said Yates, who was appointed by President Obama after working as an assistant U.S. attorney for more than 20 years. “They grew up in a system in which they were required to seek the most serious charge, which often resulted in the longest sentence. Now, the attorney general is saying, ‘Look at the circumstances of every case and his or her prior criminal history in determining the fair and appropriate charge.’ That’s a lot harder than robotically following a bright line rule.”

Timothy J. Heaphy, the U.S. attorney for the Western District of Virginia, said prosecutors in his office at first had concerns similar to those of the association. “But as time goes on,” he said, “people are understanding that we’re spending less money on prisons and it is more fair to tailor our charging discretion.”

In the end, a Justice Department official said, assistant U.S. attorneys are free to express their opinions internally, but they don’t make policy. They must follow guidelines, the official added. Indeed, when Guthrie was asked Thursday about Holder’s newest proposal, he acknowledged: “We’ll follow the direction of the attorney general. He’s our boss.”

Some prior posts about AG Holder and prosecutorial perspectives on sentencing reform:

March 14, 2014 in Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (23) | TrackBack

Wednesday, March 12, 2014

Sixth Circuit to hear oral argument on extreme application of ACCA in US v. Young

A number of months ago in this post, titled "A few shotgun shells landed a man 15 years in federal prison," I reported on a remarkable federal sentencing story out of Tennessee involving an extreme application of the 15-year mandatory minimum federal sentencing term set out in the Armed Career Criminal Act.  I am now excited that tomorrow morning, a Sixth Circuit panel is scheduled to hear oral argument in this matter, US v. Young.  I am excited in part because I authored a brief on behalf of the National Association of Criminal Defense Attorneys (NACDL) setting out why this sentencing should be deemed unconstitutional under a proper application/interpretation of the Eighth Amendment.  And the Sixth Circuit has afforded me five minutes of argument time (taken from the Appellant's alloted time).

Notably, counsel for Mr. Young has on appeal has developed a Fifth Amendment challenge to the conviction as well as making Eighth Amendment arguments against the sentence.  And the feds, not surprisingly, contend there is no constitutional problem with the conviction and sentence in this case.  Readers interested in this case and the legal issues on appeal can review the briefs, which I am uploading here:

Download Brief of Appellant in US v. Young

Download Young Amicus FILED

Download Appellee's Briefin US v. Young

Download Reply Brief of Appellant in Young

Related prior posts:

March 12, 2014 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (7) | TrackBack

Monday, March 03, 2014

"Holder and Republicans Unite to Soften Sentencing Laws"

The title of this post is the headline of this notable new New York Times article, which includes these excerpts:

Shortly after Senator Rand Paul filed suit last month against the Obama administration to stop its electronic dragnet of American phone records, he sat down for lunch with Attorney General Eric H. Holder Jr. in his private dining room at the Justice Department.

Mr. Paul, a Kentucky Republican, is one of the Obama administration’s most vocal critics. But their discussion focused on an issue on which they have found common cause: eliminating mandatory-minimum prison sentences for nonviolent drug offenders.

The Democratic attorney general and the possible Republican presidential candidate are unlikely allies. But their partnership is crucial to an alliance between the nation’s first African-American attorney general, who sees his legacy in a renewed focus on civil rights, and some of Congress’s most prominent libertarians, who have accused the Obama administration of trampling on personal freedom with drones, wiretaps, tracking devices and too much government.

Together, they could help bring about the most significant liberalization of sentencing laws since President Richard M. Nixon declared war on drugs. In 2010, Congress unanimously voted to abolish the 100-to-1 disparity between sentences for crack cocaine offenses and those for powdered cocaine, a vestige of the crack epidemic. Now, the Obama administration and its allies in Congress are pushing to go even further. Mr. Holder wants to make prisoners eligible for early release if they were sentenced under the now-abolished crack guidelines. And he wants judges to have more discretion when it comes to sentencing nonviolent drug offenders....

Libertarian-minded Republicans see long prison sentences as an ineffective and expensive way to address crime. “This is the definition of how you get bipartisan agreement,” Mr. Paul said in an interview. “It’s not splitting the difference. It’s finding areas of common interest.”

Mr. Paul is backing a sentencing overhaul bill, also supported by Mr. Holder and the Obama administration, that he predicts will pass the Senate with support from up to half of its Republicans. The bill’s sponsors include Democratic stalwarts such as Senator Richard J. Durbin of Illinois and Senator Patrick J. Leahy of Vermont, the Judiciary Committee chairman, as well as Republicans with strong Tea Party credentials like Senator Mike Lee of Utah and Senator Ted Cruz of Texas

Similar legislation is pending in the House, where libertarians and Tea Party conservatives will be crucial to determining its fate if it comes up for a vote. That is the same group that bucked the Obama administration and nearly succeeded in passing legislation prohibiting the National Security Agency from seizing the phone records of millions of Americans.

Some Republicans say that they are the ones being consistent on matters of protecting liberties, and that Mr. Holder’s push for changes to the sentencing laws is a step in their direction, not the other way around. “I would say Eric Holder supports me and my civil liberties bill,” said one of the House bill’s sponsors, Representative Raúl R. Labrador, an Idaho Republican who once demanded Mr. Holder’s resignation over the botched gun-trafficking case called Operation Fast and Furious....

Mr. Holder noted that a third of the Justice Department’s budget is spent running prisons. That resonates with fiscal conservatives like Representative Jason Chaffetz, Republican of Utah. Mr. Chaffetz once suggested that Republicans might have Mr. Holder arrested for contempt. But Mr. Holder recently had him for breakfast at the Justice Department....

Mr. Chaffetz said his conversations with Mr. Holder represented “one of the few instances I can point to where we’re starting to make some kid steps forward” toward bipartisan collaboration.... “I think there’s a realization that we’re not actually solving the problem with some of these drug crimes,” Mr. Chaffetz added. “But on the other side of the coin, there’s no trust with the Obama administration. None.”...

Representative Trey Gowdy, a South Carolina Republican and a former federal prosecutor, joined Mr. Chaffetz for breakfast at the Justice Department and described Mr. Holder as a gracious host. “The fact that he’s taking the time to talk to two backbenchers, he certainly didn’t have to do that,” Mr. Gowdy said.

Mr. Gowdy said he was convinced that mandatory sentences made little sense for minor offenses. But he doubts that a sentencing bill can pass the House, in part because voters in Republican districts oppose so many of the Obama administration’s policies. Mr. Holder’s push for same-sex marriage does not make it easier, he said.

Mr. Paul was more optimistic. He said conservatives and liberals would join in support of changing sentencing laws, just as they have joined in opposition of the N.S.A.'s domestic surveillance programs.... As the meeting concluded, they agreed to work together and said their goodbyes. Then Mr. Paul wryly added, “I’ll see you in court.”

Some old and newer related posts about AG Holder and the "new politics" of sentencing reform:

March 3, 2014 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (26) | TrackBack

Detailing the impact and import of Burrage on the federal drug war

The Supreme Court a few weeks ago in Burrage v. United States, No. 12-7515 (S. Ct. Jan. 27, 2014) (available here), rejected federal prosecutors' arguments to expand the reach and application of a mandatory minimum sentencing provision for a drug defendant.  Now, via this notable ABC News report headlined "U.S. Drug Cases Getting Rehabbed After Supreme Court Decision," we learn about some of the early impact of this ruling:

A week before actor Philip Seymour Hoffman overdosed on a mix of heroin, cocaine and other drugs, the Supreme Court restrained what one top prosecutor called "the strongest tool" federal authorities have to go after dealers in such cases, and now some U.S. drug prosecutions are getting sent to rehab. "We may not be able to meet the standard of proof in those cases," the U.S. Attorney in Vermont, Tris Coffin, said of overdose cases involving a cocktail of drugs. "It will have some impact."

In fact, a federal judge in Kentucky has already vacated the most severe charge against 53-year-old Harold Salyers, a father who was certain to spend decades in prison after being convicted last year of selling heroin to a man who then died. In Alaska and Ohio, defense attorneys are separately hoping their clients can similarly benefit from the high court's recent decision.

On average, drug traffickers in federal cases are sentenced to less than seven years behind bars.  But "when death or serious bodily injury results," the dealer can face a mandatory minimum of 20 years and as long as life in prison, according to federal law. Federal authorities have long sought the stiffer charge when a dealer's drugs contributed in some way to an overdose.

In January, though, the Supreme Court ruled the dealer's drugs need to do more than just contribute, they need to be "the straw that broke the camel's back," as one Justice Department official put it. That's "problematic," especially in overdose cases where an accused dealer's drugs are not the only drugs involved, according to the official. Nearly half of all overdoses involve multiple drugs, federal statistics indicate. "Now we need to [prove] not that just drugs killed them, but which drugs killed them," said the Justice Department official, speaking on the condition of anonymity....

The Supreme Court decision in Burrage v. United States initially received scant news coverage and only moderate notice since actor Hoffman's overdose -- a case being handled by local authorities in New York that highlights some of the obstacles to bringing federal charges.  Still, top federal prosecutors said they don't believe the high court's decision is "a significant setback" or "a real game-changer for us."

Medical experts will just have to dig deeper to determine a drug's exact role in death, and federal prosecutors rarely seek the stiffer charge anyway, even when an overdose occurs, according to both Coffin and Harvey, the U.S. attorneys. "We're going to be fine" and will bring "most of the cases we want to bring," Harvey said.

But the Justice Department official, speaking on condition of anonymity, said finding medical experts who can determine a drug's exact role is not so easy and "is a big burden on the government." Plus, the official said, the Supreme Court decision could be "a blow" to investigative efforts. "The 20-year mandatory minimum has been tremendously efficient in scaring the dickens out of people so they cooperate up the chain," the official said. "It's been a really good negotiating tool."

There are so many interesting aspects to this Burrage follow-up story, and it highlights for me that it might be very interesting and very valuable for some researchers to assemble and analyze data on how the mandatory minimum sentencing provision at issue in Burrage has been applied in the years before this SCOTUS ruling and how it gets applied in the coming years.

But I especially like and find helpful the candid and astute quotes from the unnamed Justice Department official reprinted at the end of this excerpt. The quote so efficiently and effectively captures the real work and importance of all modern mandatory minimum sentencing terms in the federal system: they mostly exist to reduce "a big burden on the government" by providing a ready and "tremendously efficient" to scare "the dickens out of people so they cooperate up the chain" and thus serve as a "really good negotiating tool."

As I have said before and will say again, for those who favor a big federal criminal justice system having lots of power with limited burdens on a "tremendously efficient" means scare "the dickens out of people so they cooperate" with government officials, the current operating structure and modern application of federal mandatory minimums are still working pretty well despite the setback that Burrage may represent for one of these potent prosecutorial weapons in the drug war. But for those who are suspicious of a big federal criminal justice system having lots of power concentrated in executive branch official not subject to the rule of law or really any regulation or review of how its power gets used (persons that include Senator Rand Paul and yours truly), reform of all federal mandatory minimums seems to be essential to restore fully the vision of limited federal government power and individual rights that inform and infuse the Constitution and the Bill of Rights.

March 3, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Friday, February 28, 2014

More fascinating "Quick Facts" from the US Sentencing Commission

I am so pleased to see and to be able to report that the US Sentencing Commission is continuing to produce insightful little documents as part of its terrific new series of reader-friendly "Quick Facts" publications.  (Regular readers may recall from this prior post that the USSC describes these publications as a way to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")

As I have said repeatedly before, I think this is a very valuable innovation coming from the USSC, and I have already learned a lot and benefited greatly from all the publications in the series.  This latest one on certain firearm offenses, Section 924(c) Offenders , includes these notable data:

From among 84,173 cases reported to the USSC in FY2012, "2,189 involved convictions under 18 U.S.C. § 924(c)" which criminalized possession/use of a firearm in furtherance of another offense and:

The average length of sentence for offenders convicted under 18 U.S.C. § 924(c) was 165 months.

  • The average length of sentence for offenders convicted of one count under section 924(c) was 84 months.
  • The average length of sentence for offenders convicted of one count under section 924(c) and another offense not carrying a mandatory minimum penalty was 132 months. When the other offense carried a mandatory minimum penalty the average sentence was 181 months.
  • The average length of sentence for section 924(c) offenders who were determined to be career offenders was 252 months.
  • The average length of sentence for offenders convicted of multiple counts of section 924(c) was 358 months.

February 28, 2014 in Data on sentencing, Detailed sentencing data, Mandatory minimum sentencing statutes, Offense Characteristics | Permalink | Comments (0) | TrackBack

Thursday, February 20, 2014

Are we "headed for a crime-riddled future" without mandatory minimums?

The question in the title of this post is drawn from a notable quote toward the end of this notable new article from The Economist. The article is headlined "Sentencing reform: Kinder, gentler; Less time inside for less-serious crimes." Here are excerpts:

Last August Eric Holder, America’s attorney-general, issued a memo to federal prosecutors. It directed them not to charge certain low-level, non-violent, non-recidivist drug defendants without ties to cartels with crimes serious enough to trigger mandatory minimum sentences.  The direct effects of this policy shift seem small: Paul Hofer, a lawyer who specialises in sentencing matters, found that just over 500 of the roughly 25,000 defendants sentenced under federal drug laws in 2012 might have got a smaller rap if Mr Holder’s policy had been in place then.  But it appears to have given sentencing reform a strong shot in the arm.

In early January the United States Sentencing Commission (USSC), the agency that sets sentencing policies for federal courts, published proposed changes to sentencing guidelines, one of which would reduce penalties for some drugs charges....

Congress also seems to be shedding its usual lethargy on the subject. On January 30th the Senate Judiciary Committee sent the Smarter Sentencing Act to the full Senate for a vote. This bill would, first, reduce mandatory minimum sentences for non-violent drug offenders and direct the USSC to lower sentencing guidelines accordingly.  Second, it would make the Fair Sentencing Act of 2010 retroactive, so that anyone imprisoned under the old law could apply to have his sentence reduced....

Not everyone is happy with these changes.  The National Association of Assistant United States Attorneys (NAAUSA), which represents a minority of federal prosecutors, urged senators not to “weaken the benefits of mandatory minimum sentencing” — ie, the fact that harsh sentences terrify defendants into co-operating with prosecutors.  One member of the NAAUSA frets that without mandatory minimums, “we are headed for a crime-riddled future.”

Yet reform continues. Barack Obama has yet to commute many long federal sentences, but the Justice Department wants to find more candidates for presidential clemency.  On February 11th Mr Holder urged states to repeal laws that bar ex-convicts from voting. Anecdotal evidence from federal courts in Tennessee, Vermont and Virginia shows that some judges are already shifting position because they expect the Smarter Sentencing Act to pass.  Advocates for ever-harsher sentences appear to be losing the whip hand.

February 20, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (8) | TrackBack

Monday, February 17, 2014

Federal judge urges passage of the Smarter Sentencing Act because of "Prisoners I Lose Sleep Over"

The title of this post is drawn from the headline given to this recent commentary piece in the Wall Street Journal authored by senior US District Judge Michael Ponsor. Here are excerpts:

The Senate Judiciary Committee approved the "Smarter Sentencing Act" by a bipartisan vote of 13-5 on Jan. 30, sending it to the Senate floor.  The legislation is excellent and its passage would mean a long overdue correction of a misguided sentencing regime that Americans — including federal judges like me — have struggled with for more than two decades.

I've been on the federal bench for 30 years, having served 10 years as a magistrate judge and 20 as a U.S. district judge.  My pride in our constitutional system runs bone deep: No system of law has ever existed that tries so hard to be truly fair.  I can take scant pride, however, in the dark epoch our criminal sentencing laws have passed through during my decades handling felony cases....

For years, I could recite the mandatory terms for crack in my sleep: five years for five grams, 10 years for 50 grams, 20 years for 50 grams with one prior conviction, life without parole for 50 grams with two priors — no discretion, no consideration of specific circumstances.  These mandatory terms (unless the defendant cooperated by implicating others) were the same for low-level couriers, called mules, as for high-echelon drug lords.

By passing the Fair Sentencing Act, Congress recognized that this system of mandatory sentences, in addition to being unjust, was to some extent racially skewed since black drug users tend to favor crack, while whites prefer much less harshly penalized powder cocaine. Yet defendants sentenced before the act was passed still languish today, serving out sentences that virtually all members of Congress now recognize as excessive.  And there is not a darn thing anyone can do about it. If you're the one doing the sentencing, this reality will keep you awake at night, believe me.

The Smarter Sentencing Act would reduce 20-year mandatory sentences to 10, 10-year sentences to five, and five-year sentences to two years.  Increased numbers of offenders with very modest criminal records would not face mandatory sentences at all.  If adopted, the law would also permit thousands of prisoners to seek reduction of their prison terms to bring them in line with the Fair Sentencing Act.  None of these changes would reduce the power of judges to slam the really bad actors. But they would permit judges to do what they are paid to do: use their judgment.

Our vast prison apparatus is too costly, but more important, it is unworthy of us as a free people.  This new statute is well named — now is the time for smarter sentencing.

Some recent related posts concerning Smarter Sentencing Act:

February 17, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, February 12, 2014

Effective Heritage analysis of federal MMs and statutory reform proposals

Earlier this week, the Heritage Foundation published this effective and informative Legal Memorandum titled "Reconsidering Mandatory Minimum Sentences: The Arguments for and Against Potential Reforms." I plan to have the students in my Sentencing class read this memo, which was authored by Evan Bernick and Paul Larkin, because it provides a very timely review of the arguments surrounding the leading modern reform proposals. And here are the "key points" highlighted by the authors in conjunction with the memo:

The U.S. Senate is considering two bills that would revise the federal sentencing laws in the case of mandatory minimum sentences.

The Justice Safety Valve Act of 2013 expands the existing sentencing “safety valve” by allowing a judge to depart downward from any mandatory minimum “if the court finds that it is necessary to do so in order to avoid imposing” an unjust sentence.

The Smarter Sentencing Act of 2013 applies only to nonviolent drug crimes and would permit a district judge to issue sentences without regard to any mandatory minimum if the court finds that the defendant meets certain criminal history requirements and did not commit a disqualifying offense.

Although the Smarter Sentencing Act takes a smaller step than the Safety Valve Act toward the revision of the federal mandatory minimum sentencing laws, such a measured approach could enhance federal sentencing policy while avoiding a number of potential pitfalls.

February 12, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, February 08, 2014

"On drug sentencing, a growing number of Republicans are ready to shed the party’s law-and-order image in favor of reform"

Jeff FlakeThe title of this post is part of the headline of this notable new Slate piece.  Among other astute points, this piece highlights the generational differences between the members of the GOP who continue to embrace tough (and big) federal criminal justice approaches and other GOP members now embracing reform efforts. Here are excerpts:

“As Christians, we believe in forgiveness,” said [Senator Rand] Paul [in his keynote at the annual American Principles Project conference]. “I think the criminal justice system should have some element of forgiveness.”  There are, sure, human terrors who need to be locked up. “But there are also people who make youthful mistakes who I believe deserve a second chance. In my state, you never vote again if you’re convicted of a felony. But a felony could be growing marijuana plants in college. Friend of mine’s brother did 30 years ago. He has an MBA. But he can’t vote, can’t own a gun, and he’s a house-painter with an MBA, because he has to check a box saying he’s a convicted felon.”

Paul’s audience, consisting of social conservatives, congressional candidates, and radio hosts, listened or nodded along. “These are ideas not many Republicans have talked about before,” Paul said. “I think if we talk about these ideas, we take them to the minority community, often the African-American and sometimes the Hispanic community — 3 out of 4 people in prison are black and brown! But if you look at surveys on who uses drugs, whites and blacks and Hispanic use at about the same rate.  You don’t have as good an attorney if you don’t have money.  Some of the prosecution has tended to go where it’s easier to prosecute people.”

The crowd stayed with him. “I think these are things we should look at. I’m not talking about legalization. I’m talking about making the criminal justice system fair and giving people a second chance if they served their time,” Paul said.

That line earned a long burst of applause.  Paul was in no danger of losing this crowd. Conservatives were ready to talk about lighter sentences for some criminals and for the restoration of felons’ rights.  Just one week earlier, the Senate Judiciary Committee had approved the Smarter Sentencing Act, co-sponsored by Illinois Sen. Dick Durbin and Utah Sen. Mike Lee.  If signed by the president, it would slash the 30-year-old mandatory minimums for drug crimes.  Ten-year sentences would become five-year sentences.  Five-year sentences would shrink to two years.

Every Democrat had voted “aye” — as had three of the committee’s eight Republicans. The bill isn’t as far-reaching as Paul’s own Justice Safety Valve bill, but it’s moving, and there’s already companion legislation waiting in the House.  The most partisan Congress in anybody’s memory may actually come together to go easier on nonviolent drug offenders....  The U.S. Sentencing Commission, which is being heavily lobbied to change standards, now consists mostly of Obama appointees.  Even the conservative appointees like William H. Pryor Jr., whose judicial nomination was filibustered by Democrats for two years, are advocates for reform.

This is more than a trend. This is a reversal of a trend that helped create the modern Republican Party. After bottoming out in the 1964 election, Republicans surged back in 1966 and won the presidency in 1968.  They cracked the old Democratic coalition, in part because rising crime rates and visions of urban riots sent voters sprinting away from liberalism....

For three more decades, Republicans could win tight elections by capitalizing on the fear of crime.  Democrats met them where they could, to neutralize the issue, because to be called “soft on crime” was to be exiled with Michael Dukakis.  As recently as 2012, a pro-Mitt Romney super PAC could dunk on Rick Santorum by warning voters that the senator “voted to let convicted felons vote.”...

Arizona Sen. Jeff Flake, one of the Judiciary Committee members who voted for the sentencing reform bill, acknowledged that the GOP had long been the “law and order” party.  “But we’ve also been the rational party,” he said. “We’ve been the party of fiscal discipline.  It’s tough to justify some of these incarcerations and the cost.  I understand the argument that it gives law enforcement another card to play, plea bargains — I understand that.  But we’ve gone too far.”

In the Judiciary Committee, the average age of the Republicans who voted for reform —Sens. Ted Cruz, Jeff Flake, and Mike Lee — was 45.  The average age of the Republicans who voted no — Sens. John Cornyn, Lindsey Graham, Chuck Grassley, Orrin Hatch, and Jeff Sessions — was 69.  The elder Republicans didn’t want to patronize the new class and didn’t doubt that, in Sessions’s words, “there are some areas where we could reduce the length of incarceration without adversely impacting crime rates.”  But they remembered the bad old days, and the young guys didn’t....

Idaho Rep. Raul Labrador, age 46, sponsored the House companion to the Durbin-Lee reform bill.  He was an immigration lawyer before he entered politics.  “I spent 15 years working in the criminal defense business and seeing people, nonviolent offenders, going to prison,” he explained.  “Then, when I was in the state legislature, I was seeing these budgets continue to grow.  In federal court, you can know a drug dealer, and just the fact that you knew he was about to make a deal, you’d be charged with the entire conspiracy. You’d have a person who was a low-level offender who really had no participation in the conspiracy, and he’d be charged with everything the top trafficker was charged with.  And I don’t think that’s right.  Our Founding Fathers wanted to make it difficult for people to be prosecuted.”

And here’s one of the paradoxes of the new Republican divide. The older class, hewing to law and order, points to the nightmares of the 1970s and 1980s. This isn’t a theoretical discussion. It’s about undoing minimums and social norms that have, sure, generated some awful stories but have played at least some role in plunging crime rates.  “I think the president made a big mistake when he spoke cavalierly about drug use,” said Sessions. “There’s a national effort that saw drug use by high school seniors go from over 50 percent to under 25 percent.  The more we talk about it, the more it goes on television, the more it goes on jokesters’ programs, you’re going to see young people use drugs more.”

The new Republicans, people like Paul, have their own anecdotes, about people their own age — about themselves. Then they skip past the law-and-order era, 200 years back, to the intent of the founders.  Here is a cause whose time should have come many, many years ago.

Some recent and older related posts:

February 8, 2014 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (61) | TrackBack

Thursday, February 06, 2014

Opposition by NAAUSA to Smarter Sentencing Act now garnering (too?) much attention

Late last week, Bill Otis over at Crime & Consequences complained in posts here and here about the lack of media coverage regarding the expressed opposition by the National Association of Assistant United States Attorneys (NAAUSA) to statutory sentencing reforms endorsed by Attorney General Eric Holder.  Based on this new reporting from The Huffington Post, headlined "Drug Warriors Reject Obama Administration's Call For Softer Sentences," it seems that NAAUSA's actions are now garnering considerable media attention.  Here is part of the HuffPost story with this new media reality highlighted:

A group of federal prosecutors is criticizing the Department of Justice’s support for legislation that would soften U.S. drug sentencing policies.

The National Association of Assistant United States Attorneys, an organization representing about 1,300 of the 5,600 federal prosecutors, sent a letter to Attorney General Eric Holder last week objecting to his endorsement of the Smarter Sentencing Act. The bipartisan Senate bill would lighten prison sentences for people convicted of nonviolent drug offenses.

The letter, signed by NAAUSA president and assistant U.S. attorney Robert Gay Guthrie, argues that the U.S. should resist calls to reform its mandatory minimum laws, which require judges to sentence certain drug defendants to lengthy prison terms, even if the judge considers those sentences excessive.

In the letter, Guthrie insists that the “merits of mandatory minimums are abundantly clear," insisting that they reach "only to the most serious of crimes" and "target the most serious criminals."...

Guthrie did not respond to an interview request, and a NAAUSA representative told HuffPost that the organization had been overwhelmed with media attention and wouldn't be able to respond until Friday at the earliest.

I fear I may be part of the media that is overwhelming NAAUSA with attention, as I made a request late last week through the NAAUSA website for more information about its survey of federal prosecutors concerning federal mandatory minimum sentencing provisions.  As of this writing, I have not heard back from NAAUSA, nor have I been able to find out any new information about the survey.

Interestingly, though, this HuffPost article seems to have gotten some special access to the results of the NAAUSA survey.  Specifically, the HuffPost piece reports on the NAAUSA survey with a number of details that I have not previously seen publicly reported (and about which I am a bit suspicious):

An online poll conducted by the group [NAAUSA] found that just 15 percent of the nearly 650 federal prosecutors surveyed supported the Smarter Sentencing Act, while more than 60 percent opposed it....

The group dove into the debate over mandatory minimums after conducting its online survey in early November.  According to that survey, more than 80 percent of assistant U.S. attorneys interviewed don’t believe the criminal justice system is "broken," as Holder suggested in a speech in 2013.  And more than three-quarters of those surveyed said they don’t believe that the justice system disproportionately punishes people of color.

I am a bit suspicious about this recounting of the NAAUSA survey results because I think the survey may have asked generally about mandatory minimum reforms being proposed in Congress and not only about the Smarter Sentencing Act.  The SSA, significantly, does not eliminate any mandatory minimums, it just cuts their lengthy in drug cases; other bills about which NAAUSA may have asked call for much more significant reform of all existing federal mandatory minimums.  I remain eager to actually see the actual survey and the result assembled by NAAUSA because I want to be sure that the specifics of the SSA, and not just mandatory minimum reforms in general, were a focal point of the responses now that the SSA appears to be the main sentencing reform bill getting traction in Congress.

A few recent related posts:

February 6, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (32) | TrackBack

Wednesday, February 05, 2014

First Circuit rejects feds request for remand for a sentencing jury make finding to trigger mandatory term

Both Sixth Amendment fans and sentencing fans are going to want to check out a fascinating decision by the First Circuit today in US v. Herrerra Pena, No. 12-2289 (1st Cir. Feb. 5, 2014) (available here). The start of the opinion makes clear why:

In federal prosecutions, under the requirements of Alleyne v. United States, 133 S. Ct. 2151, 2158 (2013), if the distribution of drugs is proven beyond a reasonable doubt to a jury to have resulted in a death, a defendant will face a 20-year mandatory minimum sentence. See 21 U.S.C. § 841(b).  But if the government does not meet that burden before conviction, a defendant will face a different mandatory minimum -- either 10 years, 5 years, or no minimum, depending on the drug type and quantity. See 21 U.S.C. § 841(b)(1)(A), (B), (C).  When, as here, there is Alleyne error resulting in the imposition of a mandatory minimum sentence based on judicial findings on a lesser standard of proof, the circuit courts usually have merely remanded for resentencing by the district courts.

The prosecution here asks us to depart from that usual practice.  We are asked, after an Alleyne error and following a conviction based on a straight guilty plea to drug dealing but not to "death resulting," to permit the prosecution on remand to empanel a sentencing jury to allow the government to now prove beyond a reasonable doubt that a death resulted from the defendant's drug dealing.  Because Alleyne was decided after sentencing and while the case was on appeal, the situation in this case will not frequently occur.  We hold that the government's proposed course of action is foreclosed on the facts of this case, is unfair, and would raise troubling constitutional questions that can be avoided by denying the government's request.

February 5, 2014 in Blakely in Appellate Courts, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Tuesday, February 04, 2014

"Prosecutors Wrong to Oppose Sentencing Reform"

The title of this post is the headline of this new commentary appearing at Main Justice and authored by Jamie Fellner, who is a senior advisor to the US Program of Human Rights Watch and the author "An Offer You Can't Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty" (discussed here).   Here are excerpts:

Sentencing reform efforts are finally getting some traction after three decades mandatory minimum drug sentencing laws that crammed federal prisons with low-level drug offenders.  A bipartisan bill pending in the US Senate would reduce mandatory minimums for certain drug crimes and give judges some discretion to impose lighter sentences.  Attorney General Eric Holder has endorsed the legislation, saying it "could ultimately save our country billions of dollars in prison costs while keeping us safe."

Some federal prosecutors diagree.  The National Association of Assistant United States Attorneys (NAAUSA) has sent a letter to Holder saying mandatory minimums “reach only to the most serious of crimes.  They target the most serious criminals.  They provide us leverage to secure cooperation from defendants.  They help to establish uniformity and consistency in sentencing.  And foremost, they protect law-abiding citizens and help to hold crime in check.”

An impressive set of claims -- but mostly false.

Mandatory minimums reserved for the most serious criminals?  Hardly.  According to the United States Sentencing Commission, 93 percent of federal drug defendants come from the lower or middle tiers of the drug business; 40 percent were couriers or street level dealers....  As a former US Attorney told me, "The public simply does not realize how many low-level guys are in [federal] prison.... We lock up the lowest fruit in drug conspiracies."...

Nor is it true that mandatory minimums "establish consistency in sentencing."  Mandatory sentences were introduced in the 1980s and 90s amid complaints that judges in different districts were meting out wildly varying sentences for the same crimes.  But mandatory minimum sentencing laws simply shifted the source of disparities from judges to prosecutors.  In some federal districts, prosecutors always charge everything they can throw at the defendants and refuse to negotiate; in other districts, they're more willing to negotiate a lower sentence.  Because of differences in prosecutorial charging and plea bargaining practices, the average drug sentence ranges from a low of 25 months in some districts to a high of 128 months in others.

What mandatory minimums do -- and here we get to the heart of NAAUSA’s opposition --is provide prosecutors with "leverage" to extract guilty pleas and cooperation from defendants.  Leverage is a polite word for coercion.... 

Those who refuse the deal and go to trial get hammered.  The average sentence of drug offenders who don't plead is three times as long those who do.  And in many cases, the “trial penalty” -- the difference between the sentence a defendant would have received if she had pled versus the sentence imposed after trial -- is extraordinarily cruel.  To cite just one case, a Florida woman named Sandra Avery rejected a plea offer of a ten-year mandatory minimum for dealing small quantities of crack.  The prosecutors punished her with a mandatory sentencing enhancement that sent her to prison for the rest of her life....

But what if the threat of high mandatory minimum sentences were the only way prosecutors could get defendants to plead or to cooperate.  Would that be good reason to keep them?  We think not, since securing pleas -- or even encouraging cooperation – has never been considered a legitimate purpose of punishment. Punishment should fit the crime -- not a defendant’s willingness to plead or snitch. How is it justice to convert a refusal or inability to cooperate into a much higher sentence than a particular crime deserves?

The real issue is that prosecutors do not want judges to set sentences.  Mandatory minimum sentencing laws tie judges’ hands, leaving prosecutors with the enormous power to dictate minimum sentences through their charging decisions.  Confronted with that power, 97 percent of federal drug defendants today plead guilty.  Prosecutors are able to rack up convictions without the expense, risks and burdens of trial.

No one likes to relinquish power -- so it is not surprising that at least some prosecutors want to retain the advantages of mandatory minimum sentencing laws.  Cutting back on mandatory minimums would not, however open the floodgates to crime: judges are quite capable of ensuring serious criminals get serious sentences.  But sentencing law reform would make it harder for prosecutors to coerce defendants into pleading guilty. It would deprive prosecutors of a plea bargaining cudgel they never should have been given in the first place.

A few recent related posts:

February 4, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Sunday, February 02, 2014

Heritage Foundation apparently endorsing Smarter Sentencing Act; where do other conservative groups and media stand?

A conservative friend alerted me to this notable entry from the blog of The Heritage Foundation authored by Evan Bernick and headlined "Time to Reconsider Mandatory Minimum Sentences."   Here are excerpts: 

The Smarter Sentencing Act is narrowly tailored to address one of the most pressing problems with mandatory minimums — arbitrary, severe punishments for nonviolent offenses— while leaving for another day the question of whether mandatory minimums should apply to violent crimes....

Mandatory minimums were intended to address widely acknowledged problems with the criminal justice system. But good intentions don’t necessarily give rise to good results. In particular, some drug offenses, which make up a significant proportion of mandatory minimums, can give rise to unduly severe punishments. The difference between a drug quantity that triggers a mandatory minimum and one that does not will often produce a “cliff effect.” For example, someone with 0.9 grams of LSD might not spend much time incarcerated, but another fraction of a gram will result in a five years behind bars. It is difficult to conclude that the additional one-tenth of a gram demands a minimum sentence of five years’ imprisonment in every case, regardless of its facts.

The Smarter Sentencing Act would allow judges to sentence nonviolent drug offenders below a mandatory minimum if the court finds that the defendant is not a serious offender (that is, the defendant has a limited or no criminal history, as defined by the U.S. Sentencing Guidelines, and no prior firearm, racketeering, terrorism, or sex offense convictions). The act would also make retroactive the Fairness in Sentencing Act of 2010, which prospectively reduced the disparity between the amount of crack cocaine and powder cocaine needed to trigger mandatory minimum sentences.

Mandatory minimum sentences have wrought terrible injustices in certain cases.  Granting district courts some additional limited sentencing discretion would improve the status quo without returning us to the era of unbounded judicial discretion.  It’s encouraging that, at a time when bipartisan consensus is difficult to come by, there is broad agreement that there are some problems with our federal criminal laws that ought to be addressed.  Too many mandatory minimums for nonviolent drug offenses committed by low-level offenders do not serve the ends of justice and leave no room for mercy.

I am not sure if this blog post represents the official view of The Heritage Foundation and therefore amounts to an official endorsement of the SSA.  But I am sure that those eager to see the SSA move forward in Congress should be encouraged to see this kind of sentiment being expressed on the website of a very influential think tank which says here that its "mission is to formulate and promote conservative public policies based on the principles of free enterprise, limited government, individual freedom, traditional American values, and a strong national defense." 

I am hopeful, based in part on the calls for reform represented by the votes and voices of Senators Ted Cruz, Mike Lee and Rand Paul, that a number of other groups and media with a mission "to formulate and promote conservative public policies" will also be vocal supporters of the Smarter Sentencing Act. If other prominent conservative groups echo the sentiments expressed above, my optimism about serious sentencing reforms being passed through this Congress may start to grow considerably.

A few older and more recent related posts:

February 2, 2014 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (41) | TrackBack

Saturday, February 01, 2014

Very eager to provide very thorough and fair coverage of prosecutors' views on Smarter Sentencing Act

Over at Crime & Consequences, Bill Otis complains in posts here and here about the lack of media coverage of the expressed opposition by the National Association of Assistant United States Attorneys (NAAUSA) to statutory sentencing reforms endorsed by Attorney General Eric Holder.  Specifically, in this post, Bill states that AG Holder's decision to express support for the Smarter Sentencing Act (SSA)  is "contrary to the views, not of dozens, but of hundreds of career lawyers," which "subvert[s] the experience and judgment of the Department's career lawyers" and is thus "a very big story."  In Bill's words, when "hundreds of [DOJ lawyers] take the risks of speaking out against the Attorney General on a matter this important, that is a news story."

I agree that this is a "very big story," especially for those interested in federal sentencing reforms and the use of mandatory minimums in the prosecution of the federal drug war.  Consequently, I am eager to give this story all the attention it merits and to do so in thorough and fair ways to help ensure all federal prosecutors' views on the Smarter Sentencing Act are widely known and widely understood.

Helpfully, a few hours of research on the NAAUSA website provided me with a much fuller understanding of NAAUSA's expressed opposition to the SSA.  This Sept/Oct 2013 NAAUSA newsletter has a lengthy piece headlined "Members Asked to Weigh In on the Debate on Mandatory Minimums," which includes a report of a on-going survey of federal prosecutors in the works concerning their views on MMs.  In turn, this two-page NAAUSA position paper on mandatory minimums thereafter states that a "recent NAAUSA survey documented strong opposition to any weakening of mandatory minimums." And this eleven-page NAAUSA document provides lengthy statements from prosecutors in response to the survey.

In an effort to provide very thorough and fair coverage of prosecutors' views here, I am eager to see (and to post here and publish in the Federal Sentencing Reporter) the survey instrument sent to NAAUSA members and the full results.  The statements from prosecutors reprinted in this document does reveal strong opposition to eliminating federal mandatory minimum provisions.  However, many comments express the strongest concerns about the possibility of eliminating all federal mandatory minimums, whereas the Smarter Sentencing Act endorsed by AG Holder only calls for reducing the length of mandatory minimums only for drug offenses.  

Especially because the SSA is going to be up for further debate in Congress following its passage through the Senate Judiciary Committee, and especially because the views of career DOJ lawyers are very important in this debate, I am genuinely eager to provide here as much coverage of prosecutorial perspectives as possible.  And I would be eager for readers to use to comments to help me fully and fairly cover this "very big story" and ask the right sets of questions of relevant stakeholders as I do.

A few recent related posts:

UPDATED MEDIA COVERAGE: A few helpful commentors have provided links to some additional "new media" coverage of the SSA and prosecutorial perspectives on its proposed reforms.

At TalkLeft in this post titled "Amended Weakened Version of Sentencing Reform Bill Passes Judiciary Comm.," Jeralyn provides a very helpful and effective review of the process through which the SSA was amended and was voted through the Senate Judiciary Committee. I found especially interesting this account of the various amendments offered to the SSA:

In all, Sen. Charles Grassley of Iowa introduced 6 Amendments weakening the bill and adding new mandatory minimums and increased penalties for other offenses. He got 3 of them passed.  The bill, with Grassley's amendments, now includes a new mandatory minimum for sex offenses and makes some sex offenses death penalty eligible.  It increases penalties for domestic violence offenses.  It adds new mandatory minimum sentences for some terror and arms-related crimes.

Grassley didn't get everything he wanted.  His failed amendments included one which would have abolished the Sentencing Commission and another that would have allowed prisoner transfers to foreign countries over the objection of the defendant.

Consistent with the themes of this post, I wonder if career DOJ prosecutors favor abolishing the Sentencing Commission.  To my knowledge, the Bll Otis is the only person who has publicly called for abolishing the US Sentencing Commission, though perhaps again there may be reason to believe Senator Grassley's efforts to this end are channelling the interests of hundreds of prosecutors.  

And at Simple Justice in this post titled "The Great Prosecutor Revolt of 2014 (Update)," Scott notes that Bill Otis is concerned that the "mainstream media isn’t 'covering' the career prosecutor revolt and he indicates that he will be "doing everything [he] can to get [the] story out."

February 1, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (27) | TrackBack