Monday, March 03, 2014

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

Friday, January 31, 2014

Are "hundreds of career prosecutors" (or mainly just Bill Otis) now in "open revolt" over AG Holder's support for the Smarter Sentencing Act?

The very serious question and inquiry in the title of this post is prompted by this notable recent post by Bill Otis that I just saw over at Crime & Consequences.  Bill's post is titled "Hundreds of Career Prosecutors Revolt Against Holder," and here is how the post gets started and its main points:

I spent 25 years [at DOJ], split between Main Justice in Washington and the US Attorney's Office.  Today something happened that, in my experience, is unprecedented.  Hundreds of career lawyers broke into open revolt against the Attorney General on a matter of prepossessing importance to federal sentencing.   If something like that had happened in the Bush Administration, I guarantee you it would be a Page One story. Whether it gets any coverage at all in the present Administration remains to be seen.

The Attorney General announced last week that he would support the Durbin-Lee bill pending in the Senate. That legislation would drastically cut back on mandatory minimum sentences for drug pushers -- not just for pot, but for all drug offenses, including major and repeat trafficking in heroin, meth, PCP and other extremely dangerous, and often lethal, drugs....

When the Attorney General decided to join the effort to kneecap mandatory minimums, career attorneys could remain silent no longer... [and] a letter [was sent by] the National Association of Assistant United States Attorneys [to] Mr. Holder three days ago....

[T]he fact that hundreds of career prosecutors -- not political appointees, but the men and women in US Attorney's Offices across the country hired on merit -- have revolted against the Attorney General is a development whose importance is difficult to overstate.

Career prosecutors, I can tell you from experience, are uncomfortable taking any role in what could be portrayed as a political issue. They are Republicans, Democrats and Independents, and generally have all the differences of opinion one would expect from a group so large and diverse. They view divorcing themselves from politics as essential. That they have spoken up here, and done so publicly, is a testament to how dreadfully damaging they know the Durbin-Lee bill would be.

I concur completely with Bill's claim in this post that it would be huge "Page One" news if, in fact, there were hundreds of federal prosecutors who "broke into open revolt against the Attorney General."  But I must question whether the mere fact that a letter signed by Robert Gay Guthrie, the President of the National Association of Assistant United States Attorneys, and sent to Attorney General Holder concerning these matters really is evidence of an "open revolt" by hundreds of federal prosecutors.

I believe the letter referenced by Bill Otis above is available at this link via the website of the National Association of Assistant United States Attorneys.  The only "open" name on the letter that I see is Robert Gay Guthrie.  The letter does use the term "we" consistently, so I surmise this letter represents the views of more than just Mr. Guthrie.  But, unless and until I see the names of other Assistant United States Attorneys who openly signed onto this letter (or unless we hear other public reports of public complaints coming from AUSAs), I have a hard time seeing this two-page letter as proof of an on-going open revolt.  Indeed, the tone and text of the letter does not even strike me as a "revolt" as much as an expression of a viewpoint.

In addition, I cannot help but notice that a lot of the concepts (and even some phrases) in the NAAUSA letter sound like comments often made by Bill Otis here and in other writings he has done in support of the existing system of federal mandatory minimums.  I have heard rumors that Bill serves as a lobbyist for the National Association of Assistant United States Attorneys, and thus I must wonder aloud whether the only person really in "open revolt" right now against AG Holder is Bill Otis.  That said, if Bill helped ghost-write this letter for the National Association of Assistant United States Attorneys and Robert Gay Guthrie, even Bill's own efforts to revolt is not really all that "open."

I raise these matters not because I am troubled that Bill Otis and Robert Gay Guthrie and other past and present federal prosecutors might weigh in on this important on-going federal sentencing reform debate.  But I am truly puzzled by Bill's assertion that there is now an "open revolt against the Attorney General" involving hundreds of federal prosecutors and by his surprise that a simple two-page letter from NAAUSA has not become a "Page One story."

I hope that Bill will use the comments here to explain just why he sees this letter as evidence of an "open revolt" and perhaps he can also name some of the "hundreds" of federal prosecutors who he may know to be a formal part of this "open revolt."  I also hope, if in fact there is now an on-going "open revolt against the Attorney General on a matter of prepossessing importance to federal sentencing" as Bill Otis asserts, that some current federal prosecutors (1) will openly state here or elsewhere that they signed off on this letter and did so as part of an effort to revolt against AG Holder, and (2) will openly discuss any other activities planned as part of this revolt.

I know Bill Otis feels very strongly that the current federal mandatory minimum sentencing provisions should not be reformed.  But, until reading Bill's post, I was not aware that "hundreds" of current federal prosecutors shared his perspective.  And, of course, yesterday 13 of 18 Senators on the Senate Judiciary Committee voted in favor of drug sentencing reform, and I now wonder if they were fully aware of what Bill calls an "open revolt against the Attorney General."  Finally, my own assessment of the prospects of the Smarter Sentencing Act becoming enacted law is sure to be impacted by the nature and dynamics of any on-going  "open revolt against the Attorney General" by hundreds of federal prosecutors.

A few recent related posts:

January 31, 2014 in Criminal justice in the Obama Administration, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (45) | TrackBack

Will Tea Party players (and new MMs) be able to get the Smarter Sentencing Act through the House?

I am quite pleased and excited to see that yesterday the Smarter Sentencing Act (SSA)received significant Republican support within in the Senate Judiciary Committee, with Senators Senators Mike Lee (R-Utah), Jeff Flake (R-Arizona), and Ted Cruz (R-Texas) voting in support of significant reforms to modern drug sentencing rules. Given that there are three other Tea Party Caucus Senators (Jerry Moran (R-Kansas), Rand Paul (R-Kentucky), and Tim Scott (R-South Carolina), I am relatively hopeful that establishment Republicans may not be able to prevent the SSA's passage in the full Senate.

Unfortunately for supporters of drug sentencing reform, establishment Republicans are in control in the House of Representatives, and I assume House Speaker John Beohner and/or other House leaders could quash the SSA if an whenever they might want. But what I do not know, either practically or politically, is whether establishment Republicans in the House want to kill the SSA and/or whether Tea Party players in the House are as eager to see this bill become law as some in the Senate were.

Adding to the practical and political intrigue is the intriguing fact that, as explained in this article, there are now some new mandatory minimums travelling with the SSA thanks to an amendment by the establishment Republicans on the Senate side:

The Senate Judiciary Committee approved the Smarter Sentencing Act of 2013 by a wide margin Thursday, taking a major step toward reducing mandatory drug-related sentences. Amendments attached to the bill, however, would also establish new mandatory sentences for sex crimes, domestic violence and terrorism.

The bill is sponsored by Senate Majority Whip Dick Durbin, D-Ill., and Sen. Mike Lee, R-Utah, and has significant bipartisan support. Its primary aim is to allow greater sentencing flexibility and would reduce various drug-related mandatory minimums from five, 10 and 20 years to two, five and 10 years. It would also allow prisoners with crack cocaine convictions to have their punishments revisited in light of the 2010 law that lessened penalties for the drug.

In a frustrating blow to some reformers, committee members adopted three amendments from Sen. Chuck Grassley, R-Iowa, that would add the new minimum sentences. Committee members voted 15-3 to establish a mandatory minimum sentence of five years for federal sexual abuse crimes and 15-3 to created a 10-year mandatory minimum sentence for interstate domestic violence resulting in death of the victim.

Though I have a general disaffinity for any new mandatory minimums, I am ultimately pleased by additions to the SSA that Senator Grassley added if they will aid passage of the bill. The drug mandatory reductions in the amended SSA would impact tens of thousands of federal cases every year, whereas the new mandatory minimums would likely impact only a few dozen.  I am hopeful that the added minimums might make it that much easier for establishment Republicans to vote for the SSA and for House leaders to bring the bill up for a vote.  (My gut instinct is that perhaps as many as 300 members of the full House would vote for the amended version of the SSA if it gets to a floor vote, but I remain worried it might never do so because of the establishment Republican forces eager to keep this part of the federal government big.) 

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

January 31, 2014 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, January 30, 2014

Smarter Sentencing Act passes Senate Judiciary Committee by 13-5 vote

I just received a notable news release from Families Against Mandatory Minimums concerning a notable vote today by the US Senate Judiciary Committee.  Here are the basic via the FAMM report:

Today, the U.S. Senate Judiciary Committee passed the first major reconsideration of federal mandatory minimum drug sentencing laws since the Nixon Administration. The Committee voted, 13-5, in support of S. 1410, the Smarter Sentencing Act, a bipartisan bill sponsored by Senators Mike Lee (R-UT) and Richard Durbin (D-IL).

The Smarter Sentencing Act:

  • Reduces mandatory minimum sentences for federal drug offenders by half
  • Narrowly increases the scope of an existing “safety valve” exception to federal drug offenses
  • Allows 8,800 federal prisoners imprisoned for crack cocaine crimes to return to court to seek fairer punishments in line with the Fair Sentencing Act of 2010, a unanimously-passed measure to reduce the racially discriminatory disparity between crack and powder cocaine offenses
  • Requires the U.S. Department of Justice and other federal agencies to compile, and make publicly available on their websites, lists of all federal laws and regulations carrying criminal penalties. This part of the bill addresses growing bipartisan concerns about the issue of “over-criminalization” – that there are too many federal crimes and that people can and do unknowingly and unintentionally break laws and regulations and serve jail or prison time for violations that could be better addressed with fines.
  • Adds new mandatory minimum sentences for sexual abuse, domestic violence, and terrorism offenses

This new piece up at Huffington Post, headlined "Biggest Overhaul in Federal Drug Sentencing in Decades Clears Major Hurdle, Despite Opposition From Heartless Prosecutors," provides more information about who is for and who is against this important legislative development:

Today the U.S. Senate Judiciary Committee passed bipartisan sentencing reform legislation that reduces the federal prison population, decreases racial disparities, saves taxpayer money, and reunites nonviolent drug law offenders with their families sooner. The reforms are supported by a strange bedfellows group of senators, including Senators Mike Lee (R-Utah), Rand Paul (R-Kentucky), Jeff Flake (R-Arizona), Ted Cruz (R-TX), Patrick Leahy (D-VT), Dick Durbin (D-IL), Carl Levin (D-MI) and Sheldon Whitehouse (D-RI). The legislation is opposed by some U.S. prosecutors who continue to defend a harsh, racially unjust system that has led to a greater percentage of black men being locked up in the U.S. than in South Africa at the height of Apartheid.

The bill, the Smarter Sentencing Act, is the biggest overhaul in federal drug sentencing in decades. It would reduce federal mandatory minimum sentences for drug offenses and expand the ability of judges to use their own discretion when sentencing defendants, so that judges can consider the unique facts of each case and each individual before them. It would also make the reform to the crack/powder cocaine sentencing disparity that Congress passed in 2010 retroactive, so that thousands of people sentenced under the old draconian and racially unjust disparity can leave prison early.

Even though U.S. Attorney General Eric Holder urged the committee to reform mandatory minimum sentencing yesterday, the National Association of Assistant U.S. Attorneys took the somewhat rare step of opposing the Attorney General by releasing a letter in opposition to reform. "We do not join with those who regard our federal system of justice as 'broken' or in need of major reconstruction," the organization said. "Instead, we consider the current federal mandatory minimum sentence framework as well-constructed and well worth preserving."

January 30, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (28) | TrackBack

Wednesday, January 29, 2014

Though Prez Obama ignores sentencing reform in State of the Union, AG Holder talks it up to Senate Judiciary Committee

I was disappointed, but not at all surprised, that during last night's State of the Union address, President Obama showed his distinct unwillingness to be a real leader in the arena of federal sentencing reform.  I had heard rumors that some mention of sentencing reform was possible in SOTU, but I surmise that Prez Obama cares too little about this issue to give it even a brief mention in an hour-long speech about his vision and priorities for the nation.  (In sharp contrast, as highlighted here, President George W. Bush made some quite progressive criminal justice reform comments in both his 2004 and 2005 State of the Union address.)

But while Prez Obama apparently is disinterested in these matters (or thinks they make for bad politics), his Attorney General seems to remain committed to move forward with needed federal sentencing reforms.  Specifically, consider these closing paragraphs in this prepared statement delivered today by AG Eric Holder to the US Senate Committee on the Judiciary:

[O]ur commitment to integrity and equal justice in every case, in every circumstance, and in every community ... is also reflected in the new “Smart on Crime” initiative I announced this past August — to strengthen our federal criminal justice system; to increase our emphasis on proven diversion, rehabilitation, and reentry programs; and to reduce unnecessary collateral consequences for those seeking to rejoin their communities. As part of the “Smart on Crime” approach, I mandated a significant change to the Justice Department’s charging policies to ensure that people accused of certain low-level federal drug crimes will face sentences appropriate to their individual conduct — and that stringent mandatory minimum sentences will be reserved for the most serious criminals.  Alongside other important reforms, this change will make our criminal justice system not only fairer, but also more efficient.  And it will complement proposals like the bipartisan Smarter Sentencing Act — introduced by Senators Dick Durbin and Mike Lee — which would give judges more discretion in determining appropriate sentences for people convicted of certain federal drug crimes.

I look forward to working with Chairman Leahy, distinguished members of this Committee, and other leaders who have shown a commitment to common-sense sentencing reform – like Senator Rand Paul — to help advance this and other legislation.  I thank you all, once again, for your continued support of the Department of Justice.  And I would be happy to answer any questions you may have.

A few recent related posts:

January 29, 2014 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, January 27, 2014

SCOTUS unanimously rules in Burrage that causation requirement precludes drug defendant facing mandatory minimum for abuser's death

In its one criminal justice ruling this morning, the Supreme Court today via a unanimous vote in Burrage v. United States, No. 12-7515 (S. Ct. Jan. 27, 2014) (available here), rejected an effort by federal prosecutors to expand the reach and application of a mandatory minimum sentencing provision for a drug defendant. Here is the closing paragraph of the opinion of the Court authored by Justice Scalia:

We hold that, at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U. S. C. §841(b)(1)(C) unless such use is a but-forcause of the death or injury. The Eighth Circuit affirmed Burrage’s conviction based on a markedly different under­standing of the statute, see 687 F. 3d, at 1020–1024, and the Government concedes that there is no “evidence that Banka would have lived but for his heroin use,” Brief for United States 33. Burrage’s conviction with respect to count 2 of the superseding indictment is therefore re­versed, and the case is remanded for further proceedings consistent with this opinion.

January 27, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack

Sunday, January 26, 2014

Will Prez Obama mention sentencing reform in the State of the Union address?

Presidents traditionally use the annual State of the Union address to outline a planned legislative agenda and to articulate a perspective on national priorities. Consequently, in light of all the recent talk from Attorney General Holder and members of Congress about the need for federal sentencing reform, I will be extremely interested to see what Prez Obama might say (or not say) about sentencing reform when speaking to Congress this Tuesday.

This notable new commentary by Juliet Sorensen at The Atlantic, which is headlined "Why Obama Should Back Drug-Sentencing Reform in the State of the Union," highlights that I am not the only one now thinking about POTUS, SOTU and sentencing.  Here are excerpts:

In the last week of 1963, my father, Ted Sorensen, met with President Lyndon Johnson late into the night at his Texas ranch to decide what provisions of President John F. Kennedy’s unfinished agenda to include in the upcoming State of the Union address.  Last on the list was a provision for expanded federal jurisdiction over illegal drugs, which provided not only for federal criminal-law enforcement but also for expanded rehabilitation and treatment programs.

As my father recounted in his memoir, Johnson angrily brushed aside the suggestion. “Drugs? I don’t want to have anything to do with them. Just lock them up and throw away the key!”  The meeting ended, and my father deleted that portion of the speech, which famously announced the War on Poverty — but kept the drug provision in Johnson’s legislative program. This led to controlled-substance and drug-addiction reform that passed with bipartisan support in Congress. Despite Johnson’s dismissal of my father’s proposal of treatment and rehabilitation, he extolled those ideas when he signed the Narcotic Addict Rehabilitation Act into law in November 1966, describing it as a “pioneering measure” that recognizes that “treating addicts as criminals neither curtails addiction nor prevents crime.”

President Obama now has a golden opportunity in his own State of the Union to confront the U.S. government’s continued struggle to effectively legislate drugs.  In a January 8 statement, Obama endorsed the very same priorities articulated in LBJ’s War on Poverty and catalogued exactly 50 years ago in Johnson’s own State of the Union address.  This indicates that he will also focus on income inequality — 21st century lingo for entrenched poverty — in his speech on January 28.  While a renewed commitment to tackling persistent poverty is laudable, Obama should also seize the moment to further another, related legislative aim of the Kennedy and Johnson Administrations: reduced sentencing for drug-law violators who are nonviolent offenders....

Members of the bench and bar have come to recognize that mandatory minimums don’t always keep society safe or effectively punish every defendant.  A bill in the Senate, co-sponsored by Senators Dick Durbin, a Democrat, and Mike Lee, a Republican, would capitalize on shifting opinions in Congress and the general public.  The Smarter Sentencing Act (SSA) would reduce the mandatory-minimum penalties for many drug offenses and give federal judges more leeway to sentence nonviolent offenders with limited criminal histories below the high mandatory-minimum sentences.  It would also reduce disparities between crack- and powder-cocaine offenders by making the Fair Sentencing Act of 2010, which reduced the gap between the amount of crack and powder cocaine needed to trigger certain penalties, retroactive.  Support for the SSA from law enforcement, victims’ organizations, prosecutors, and judges has poured in, including a letter signed by more than 100 former judges and prosecutors, including me....

The Obama Administration has indicated it supports mandatory-minimum-sentencing reform.  Tellingly, the president last month commuted the sentences of eight nonviolent drug offenders who would most likely have received significantly shorter terms if they had been sentenced under current drug laws, sentencing rules, and charging policies.  Attorney General Eric Holder stated last August that legislation such as the SSA will “ultimately save our country billions of dollars while keeping us safe.”  In an interview published in this week’s issue of The New Yorker, Obama acknowledged the disparate impact of drug laws on minorities, noting that “African-American kids and Latino kids are more likely to be poor and less likely to have the resources and the support” — in their families, in their schools, and in their communities — to avoid lengthy prison sentences for marijuana crimes, even as he acknowledged the “profound” social costs of drug trafficking.

A declaration of support for the SSA in his State of the Union Address — broadcast live and heard not only by Congress but approximately 50 million people around the world — would go far to create momentum and support for the bill and its goal of curbing unnecessarily harsh sentencing. In so doing, the president would put America back on the road paved by Kennedy and Johnson. My father, and the presidents he served, would be pleased.

January 26, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, January 15, 2014

"Congress should scrap drug sentencing 'enhancements'"

The title of this post is the headline of this notable new commentary by Jamie Fellner published earlier this week in The Hill. (Ms. Fellner is senior advisor to the U.S. Program of Human Rights Watch and author of this recent HRW report, An Offer You Can’t Refuse: How Federal Prosecutors Force Drug Defendants to Plead Guilty .) Here is how the commentary starts and ends:

When President Obama recently commuted the extraordinarily severe sentences of eight men and women convicted on federal crack cocaine charges, he rightly noted they had all been sentenced under an "unjust" law that mandated vastly harsher prison terms for crack than for powder cocaine offenses.

But the injustice in these cases wasn't limited to that disparity – nor even to fact that all were charged with offenses carrying harsh mandatory minimum sentences keyed solely to the type and amount of drug involved in their crime and not their role in the offense.

Prosecutors in half the cases used a 1986 sentencing provision that enables them to pursue sentences "enhanced" far beyond the mandatory minimum if the defendant has prior convictions. For defendants with one prior, their sentence can be doubled. If a defendant facing a ten-year minimum sentence has two prior drug convictions, the prosecutors can transform his sentence into life. The decision to use “enhancements” is in the prosecutor’s sole discretion and the courts have no choice but to impose the egregiously harsh enhanced sentences.

Take Stephanie Yvette George, one of the eight. She was convicted in 1997 because, as the judge said, she was the “bag holder and money holder” for crack-dealing boyfriends. She had been looking at a ten-year mandatory minimum sentence on crack conspiracy charges – already too severe a punishment for a bit player in the drug business. But prosecutors chose to increase her sentence to life because she had two earlier convictions for selling a total of $160 worth of crack – offenses for which she served nine months in a work-release program. Because there is no parole in the federal system, her life sentence was a sentence to die behind bars.

As George’s case illustrates, even a small-time drug offender with some petty prior convictions can be sentenced to life if a prosecutor decides to trigger the sentencing enhancement. Because mandatory sentences take no account of an offender's role in a crime, ten years is the minimum most street level dealers, bit players, and even couriers face unless they can secure a lower sentence through a plea agreement. Moreover, the prior convictions that turn ten years into a life sentence could have happened long ago, the defendant may never have been sentenced to prison (e.g. the sentence was for probation), and the crimes could have been as minor as simple possession of marijuana for personal use.

Some prosecutors use the enhancement provision in every case in which it's applicable. Most, however, use the threat of enhancements to strong-arm defendants into pleading guilty -- a threat they make good on if the defendant refuses. As one former prosecutor told me, "We would only invoke [the enhancement]…to penalize a defendant for the audacity of going to trial."...

In August 2013, Attorney General Eric Holder instructed federal prosecutors to avoid seeking sentencing enhancements in drug cases unless the circumstances warranted such severe sanctions. But he provided such broad criteria for determining whether such circumstances exist that, as Judge John Gleeson of the Eastern District of New York has pointed out, any capable prosecutor who wants to seek the enhancement can justify doing so.

The attorney general should prohibit prosecutors from threatening or seeking greatly increased sentences simply because defendants refuse to plead. But as long as the drug sentencing enhancement provision remains on the books, prosecutors are likely to use it. Congress should abolish the provision as part of a broader reform to the regime of mandatory minimum sentencing laws that have sent tens of thousands to prison with sentences that are neither just nor fair.

Related recent post:

January 15, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Wednesday, January 08, 2014

Unwrapping the Eleventh Circuit's final 2013 holiday present to prisoners challenging sentencing errors

Late last year, a helpful reader alerted me to an important (and very lengthy) new Eleventh Circuit panel decision in Bryant v. Warden, FCC Coleman, No. 12-11212 (11th Cir. Dec. 24, 2013) (available here). I have waited to blog about it until now because (1) I did not want this important Christmas Eve decision to be overlooked during the holiday weeks, and (2) federal public defender Amy Baron-Evans said I could use her new summary of the 110-page ruling to highlight why Bryant is the first must-read of 2014.  Here is the heart of Amy's summary of Bryant:

Eleventh Circuit Holds Savings Clause Opens the Door to a 2241 Petition Raising an Error Resulting in a Sentence Exceeding the Statutory Maximum

In Bryant v. Warden, __ F.3d __, 2013 WL 6768086 (11th Cir. Dec. 24, 2013), the Eleventh Circuit reversed the district court’s dismissal of Bryant’s 28 USC § 2241 habeas petition brought pursuant to the savings clause, 28 USC 2255(e), which permits a prisoner to file a 28 USC § 2241 petition when a § 2255 motion is “inadequate or ineffective to test the legality of his detention.”

This is an important decision for successive petitions raising claims under DesCamps or any other claim that the sentence exceeds the lawful statutory maximum. If you file a successive petition under 28 USC § 2255, and it is dismissed because it doesn’t meet the successor standard under § 2255(h), a § 2255 motion is “inadequate or ineffective to test the legality of [the prisoner’s] detention” under § 2255(e), and you can file a habeas petition under § 2241.

Leland Kynes of Holland & Knight was appointed to represent Bryant.

Savings Clause

Bryant proved that his prior § 2255 motion was “inadequate or ineffective to test the legality of his detention” and so his 2241 petition could now proceed under § 2255(e) because: (1) throughout his sentencing, direct appeal, and first § 2255 proceeding, binding circuit precedent held that a Florida concealed-firearm offense was a “violent felony” and squarely foreclosed his 924(e) claim that he was erroneously sentenced above the 10–year statutory maximum in 924(a); (2) subsequent to Bryant’s first § 2255, the Supreme Court’s decision in Begay, as interpreted by the circuit, “busted” circuit precedent holding that the Florida concealed-firearm offense was a “violent felony”; (3) Begay’s new rule applies retroactively on collateral review; (4) as a result, Bryant’s 235–month guideline sentence exceeds the 10–year statutory maximum authorized by § 924(a); (5) the savings clause in § 2255(e) reaches his claim of illegal detention above the statutory maximum.

The government raised no objection to Bryant’s attempt to proceed under the savings clause, so the court appointed amicus counsel to argue that it does not apply even when the sentence exceeds the statutory maximum. The court rejected amicus counsel’s arguments.

Procedural Default

The Eleventh also held that procedural default (by not raising the issue on direct appeal or in his first § 2255) did not bar the claim. While futility does not constitute cause to excuse procedural default, the procedural default rule is not jurisdictional but is an affirmative defense that the government can waive, and the government waived it. In addition, the savings clause under § 2255(e) applies regardless of whether the prisoner “has failed to apply” for § 2255 relief or the sentencing court “has denied him” § 2255 relief. Whether the savings clause may open the door to a § 2241 petition is jurisdictional, and so the court had to decide it.

Government’s Position

As noted, the government waived procedural default and any objection to Bryant proceeding under the savings clause.  The docket notes that the government has conceded the savings clause issue in other cases, and I’m told the government has not raised procedural default in other cases in other districts.  So this appears to be coming from the Solicitor General’s office, and its position is apparently that ACCA cases are different because a sentence above the statutory maximum is per se illegal.

The government did argue that a 1988 burglary conviction could be substituted for the concealed weapons conviction as the third ACCA predicate.  The court of appeals rejected that argument because the government did not object at sentencing to the district court’s finding that there were only three predicates or suggest at sentencing that the burglary conviction could be a predicate.

Other Circuits

The court of appeals describes a “deep and mature circuit split” on the reach of the savings clause at pages 24-26 of its decision. This part of the decision is not entirely clear and you should check your circuit caselaw.  Other circuits may adopt the Eleventh Circuit's approach, and if not, file a cert petition.

January 8, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (5) | TrackBack

Saturday, January 04, 2014

Will bipartisan momentum get Congress to enact some real and really consequential sentencing reform?

The question in the title of this post is prompted by this lengthy new AP piece, headlined "Momentum behind sentencing changes grows as supporters in Congress seek changes this year."  Here are excerpts:

An unusual alliance of tea party enthusiasts and liberal leaders in Congress is pursuing major changes in the country's mandatory sentencing laws. What's motivating them are growing concerns about both the fairness of the sentences and the expense of running federal prisons.

The congressional push comes as President Barack Obama and his Cabinet draw attention to the issue of mandatory sentences, particularly for nonviolent drug offenders. Supporters say mandatory minimum sentences are outdated, lump all offenders into one category and rob judges of the ability to use their own discretion. They also cite the high costs of the policies. The Justice Department spends some $6.4 billion, about one-quarter of its budget, on prisons each year, and that number is growing steadily....

Tough-on-crime drug policies once united Republicans and Democrats who didn't want to appear weak on crime. Now reversing or revising many of those policies is having the same effect.

The Fair Sentencing Act, passed in 2010, drew bipartisan support for cutting penalties on crack cocaine offenses. The bill reduced a disparity between crack-related sentences and sentences for other drugs, though it only addressed new cases, not old ones.  [Senator Dick] Durbin, one of that bill's chief sponsors, has written a much broader bill with [Senator Mike] Lee, called the Smarter Sentencing Act. It would expand a provision that gives judges discretion for a limited number of nonviolent drug offenders. The new law would allow judges the same latitude for a larger group of drug offenders facing mandatory sentences.

It's one of four bills dealing with sentencing that the Senate Judiciary Committee is expected to take up early in the year. The committee chairman, Sen. Patrick Leahy, D-Vt., said he wants one consensus bill to clear the committee.

Leahy is a co-sponsor on the Durbin-Lee bill but has also introduced legislation with Sen. Rand Paul, R-Ky., that would expand the safety valve even more, to all federal cases with mandatory sentences if certain conditions are met.

Sen. John Cornyn, R-Texas, introduced legislation late in December that is based on changes in Texas' state prison system.  A separate bill, sponsored by Sen. Sheldon Whitehouse, D-R.I., and Sen. Rob Portman, R-Ohio, allows inmates to earn credit for completing programs designed to reduce recidivism.

Leahy's committee delayed writing a sentencing bill several times in 2013.  But supporters noted that the last sentencing legislation took months to negotiate and said that the committee has delayed work until early 2014 in large part because behind-the-scenes talks are proving fruitful.  Durbin said he and Lee had been lobbying their fellow committee members — Durbin talking to skeptical Democrats, Lee to Republicans.  In the House, Rep. Raul Labrador, R-Idaho, a tea party conservative, and Rep. Bobby Scott, D-Va., are co-sponsors of a companion to Durbin and Lee's bill.

A number of outside groups have expressed support for the Durbin-Lee bill, too, and they run the ideological spectrum, including the conservative Heritage Action, the American Bar Association, the NAACP and the American Civil Liberties Union. 

January 4, 2014 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1) | TrackBack

Saturday, December 28, 2013

George Will laments "mandatory minimums as sledgehammers"

This past week, Washington Post columnist George Will made heavy use of recent opinions by Judge John Gleeson to join the chorus of commentators lamenting federal mandatory minimum sentencing statutes.  Here are the closing paragraphs from this commentary, headlined "The sledgehammer justice of mandatory minimum sentences":

Kenneth Harvey was 24 in 1989 when he committed a crack cocaine offense. He had two prior offenses that qualified as felony drug convictions even though they were not deemed serious enough for imprisonment. They, however, enabled the government to make an 851 filing. He will die in prison. Harvey is 48.

Thousands of prisoners are serving life without parole for nonviolent crimes. Gleeson, who is neither naive nor sentimental (as a prosecutor, he sent mobster John Gotti to die in a supermax prison), knows that most defendants who plead guilty are guilty. He is, however, dismayed at the use of the threat of mandatory minimums as “sledgehammers” to extort guilty pleas, effectively vitiating the right to a trial. Ninety-seven percent of federal convictions are without trials, sparing the government the burden of proving guilt beyond a reasonable doubt. Mere probable cause, and the meager presentation required for a grand jury indictment, suffices. “Judging is removed,” Gleeson says, “prosecutors become sentencers.” And when threats of draconian sentences compel guilty pleas, “some innocent people will plead guilty.”

Barack Obama, Attorney General Eric Holder and Sens. Pat Leahy (D-Vt.) and Rand Paul (R-Ky.) are questioning the regime of mandatory minimum sentences, including recidivism enhancements, that began with the Anti-Drug Abuse Act of 1986. Meanwhile, the human and financial costs of mass incarceration mount.

December 28, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment | Permalink | Comments (10) | TrackBack

Wednesday, December 25, 2013

Senators Paul and Booker celebrate Festivus with sentencing and drug war reform tweeting

Festivus-tweets-4As highlighted in this article, "Sen. Rand Paul's (R-Ky.) 'airing of grievances' on Twitter Monday morning actually led to an important side discussion between him and Sen. Cory Booker (D-N.J.) about drug policy — one that could preview a renewed push on reforms next year." Here is more:

It started when Paul, during his homage to "Seinfeld," joked that one of his grievances was with the Twitter-savvy Booker: "One more Festivus grievance about bipartisanship. @CoryBooker doesn't RT me enough."

Booker responded, in kind: "U, me & 'feats of strength:' Senate floor, name the time MT"

Then things got a little more serious: "@CoryBooker how about mandatory minimum sentencing reform instead?"

And then Booker threw in a caveat of his own: "Yes, If u throw in reforming Fed Hemp & Marijuana laws u've got a deal! RT"

Paul reminded him of his stance on reforming marijuana laws: "@CoryBooker I am the Senate author of Hemp bill!"

Booker ended it by declaring an end to the "War on Drugs" in 2014: "I know. U told me last week. Here is to a 2014 where we take on the failed war on drugs RT"

I am pleased that the two Senators who have talked the most about federal sentencing reform have extended the discussion to the Twitterverse. But, as I have said before and will keep saying again, reform talk is cheap and only meaningful if and when advocates can turn this talk into action.

Some recent and older related posts:

December 25, 2013 in Mandatory minimum sentencing statutes, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, December 11, 2013

"Take Action: National Call-In Day for Sentencing Reform TODAY"

The title of this post is the heading of an e-mail I received this morning from The Sentencing Project.  Here is the body of the e-mail request for action:

After decades of "get tough" rhetoric, Republicans and Democrats in Congress are finally coming together to say “enough.”

This week, the U.S. Senate is scheduled to take up legislation to address our unjust and racially discriminatory sentencing laws. One of the bills expected to be considered at this week's Senate Judiciary Committee hearing, the Smarter Sentencing Act (S. 1410), takes two significant steps forward.  First, it reduces overly harsh penalties for drug offenses and allows judges greater flexibility in sentencing. Second, it extends the more equitable crack cocaine provisions of the Fair Sentencing Act retroactively to individuals serving prison terms under the now discredited 100-to-1 quantity disparity -- a disparity that has had a devastating impact on African American communities.

We need your help. On Wednesday, Dec. 11, civil rights and criminal justice advocates, faith-based groups, and others are joining together to tell their Senators to support sentencing reform.

To join this effort, please call the Senate switchboard TODAY at 202-224-3121 and ask to be connected to each of the Senators from your state. When you are connected, urge your Senator to address unjust sentences and racial disparities in the criminal justice system by supporting the Smarter Sentencing Act, S. 1410.

By modernizing drug sentencing polices and giving federal judges more discretion in sentencing, we can take smart and targeted steps to reduce skyrocketing prison populations and reduce racial disparities in sentencing.

I have tended to be cynical and pessimistic about the import and impact of these kinds of call-in days, but folks who know a lot better than me have reported that they can be quite valuable and consequential.

December 11, 2013 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, December 05, 2013

Remarkable new HRW report details massive "trial penalty" due to mandatory minimums in federal system

2013-US-plea-graphicAs highlighted in this press release discussing a new important report, in federal courts "drug offenders convicted after trial receive sentences on average three times as long as those who accept a plea bargain, according to new statistics developed by Human Rights Watch."  Here is more from the press release about the report and its findings:

The 126-page report, “An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty,” details how prosecutors throughout the United States extract guilty pleas from federal drug defendants by charging or threatening to charge them with offenses carrying harsh mandatory sentences and by seeking additional mandatory increases to those sentences.  Prosecutors offer defendants a much lower sentence in exchange for pleading guilty.  Since drug defendants rarely prevail at trial, it is not surprising that 97 percent of them decide to plead guilty.

“Prosecutors give drug defendants a so-called choice -- in the most egregious cases, the choice can be to plead guilty to 10 years, or risk life without parole by going to trial,” said Jamie Fellnew, senior advisor to the US Program at Human Rights Watch and author of the report.  “Prosecutors make offers few drug defendants can refuse.  This is coercion pure and simple.”...

In one of hundreds of cases Human Rights Watch reviewed, Sandra Avery, a small-time drug dealer, rejected a plea of 10 years for possessing 50 grams of crack cocaine with intent to deliver. The prosecutor triggered a sentencing enhancement based on her prior convictions for simple drug possession, and she was sentenced to life without parole.

In addition to case reviews, the report is also based on numerous interviews with federal prosecutors, defense attorneys, and judges.  It also includes new statistics developed by Human Rights Watch that provide the most recent and detailed measure of what the report calls the “trial penalty” -- the difference in sentences for drug defendants who pled guilty compared with those for defendants convicted after trial.  The trial penalty is, essentially, the price prosecutors make defendants pay for exercising their right to trial. “Going to trial is a right, not a crime,” Fellner said. “But defendants are punished with longer sentences for exercising that right.”

Prosecutors are able to impose the trial penalty because judges have been reduced to virtual bystanders in cases involving mandatory sentences.  When prosecutors choose to pursue mandatory penalties and the defendant is convicted, judges must impose the sentences.  They cannot exercise their traditional role of tailoring sentences to each defendant’s conduct and culpability and of making sentences no longer than necessary to serve the purposes of punishment....

The new statistics Human Rights Watch developed for the report, based on raw federal sentencing data for 2012, include the following:

• The average sentence for federal drug offenders who pled guilty was five years, four months; for those convicted after trial the average sentence was sixteen years.

• For drug defendants convicted of offenses carrying mandatory minimum sentences, those who pled guilty had an average sentence of 82.5 months compared with 215 months for those convicted after trial, a difference of 11 years.

• Among drug defendants with prior felony convictions, the odds of receiving a sentencing enhancement based on those convictions was 8.4 times greater for those who went to trial than for those who pled guilty.

• Among drug defendants with a gun involved in their offense, the odds of receiving the statutory gun sentencing enhancement were 2.5 times greater for those who went to trial than for those who pled guilty.

December 5, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (49) | TrackBack

Wednesday, December 04, 2013

"The wrong people decide who goes to prison"

The title of this post is the headline of this notable new CNN commentary authored by US DIstrict Judge Mark Bennett and Prof. Mark Osler.  Here are some of the on-the-mark views coming today from these Marks:

Nearly 30 years ago, Congress embarked on a remarkable and ultimately tragic transformation of criminal law.  Through the establishment of mandatory sentences and sentencing guidelines, discretion in sentencing was shifted from judges to prosecutors. After the changes, prosecutors largely controlled sentencing because things like mandatory sentences and guideline ranges were determined by decisions they made.

This change ignored the fact that federal judges are chosen from the ranks of experienced members of the bar precisely because their long legal careers have shown the ability to exercise discretion.  It also ignored the contrasting truth that many federal prosecutors are young lawyers in their 20s and 30s who have little experience making decisions as weighty as determining who will be imprisoned and for how long.

The primary reason for the changes was well-intended, though: Members of Congress wanted more uniformity in sentencing. That is, they wanted a term of imprisonment to derive from the crime and the history of the criminal rather than the personality of the person wielding discretion.

After nearly 30 years, we know how Congress' experiment turned out, and the results are not good.  Federal judges have been relatively lenient on low-level drug offenders when they have the discretion to go that way.  Turning discretion over to prosecutors via mandatory sentences and guidelines not only resulted in a remarkable surge in incarceration, it does not seem to solve the problem of disparities....

Let's look at just one way that prosecutors exercise this discretion: the enhancement of narcotics sentences under 21 U.S.C. 851, or proceedings to establish prior convictions. These enhancements, at a minimum, double a drug defendant's mandatory minimum sentence and may raise the maximum possible sentence....   [O]ur analysis of the way these enhancements have been used reveals a deeply disturbing dirty little secret of federal sentencing: the stunningly arbitrary application of these enhancements by prosecutors within the Department of Justice.

The numbers tell the story. Our home states are fairly typical in their wild disparities: A federal defendant in Iowa is more than 1,056% likely to receive a 851 enhancement than one in Minnesota. Nor are these Midwestern neighbors an anomaly. In the Northern District of Florida, prosecutors apply the enhancement 87% of the time, but in the bordering Middle District of Georgia, they are used in just 2% of relevant cases.

There is also breathtaking disparity within federal district within the same state (PDF). For example, in Florida, prosecutors in the Northern District apply the enhancement 87% of the time, but in the Southern District, it is used only 14% of the time.  In the Eastern District of Tennessee, offenders are 3,994% more likely to receive an enhancement than in the Western District of Tennessee.  In the Eastern District of Pennsylvania, a defendant is 2,257% more likely to receive the enhancement than in the Middle District of Pennsylvania. The disparities are startling.

In August, Attorney General Eric Holder announced steps to establish more discipline within the Department of Justice in how this discretion is used.  It is a promising step but only that: a step. It is unclear how firm the attorney general is willing to be in tracking and constraining the use of this kind of discretion by prosecutors in different areas.

The larger lesson, and the more important one, is that after nearly 30 years, we still have gross and tragic disparities in federal sentencing, with the added burden of too many people put in prison, caused by mandatory sentencing and harsh sentencing guidelines. Tentative steps at reform will not be enough.  It is time for a radical rethinking of the project as a whole and a recognition that this grand experiment in shifting discretion to prosecutors has failed.

December 4, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, December 03, 2013

In lengthy split opinions, en banc Sixth Circuit rejects all efforts to give any relief to pre-FSA crack defendants still serving mandatory minimums

The Sixth Circuit this morning has handed down a lengthy set of opinion in the closely-watched Blewett litigation. All the opinions, which can be accessed here, run a full 79 pages.  It appears the vote to reject providing any relief to pre-FSA defendants still serving now-repealed mandatory minimums was 10-7, and here is the complicated accounting of the votes and opinions:

SUTTON, J., delivered the opinion of the court, in which BATCHELDER, C. J., BOGGS, GILMAN, GIBBONS, COOK, McKEAGUE, GRIFFIN and KETHLEGE, JJ., joined, and MOORE, J., join ed in the result. MOORE, J. (pp. 21–33), delivered a separate opinion concurring in the judgment. MERRITT, J. (pp. 34–37), delivered a separate dissenting opinion, in which DONALD J., joined. COLE, J. (pp. 38–43), delivered a separate dissenting opinion. CLAY, J. (pp. 44–58), delivered a separate dissenting opinion, in which DONALD, J., joined. ROGERS, J. (pp. 59–67), delivered a separate dissenting opinion, in which WHITE and STRANCH, JJ., joined, MERRITT, J., joined in part, and COLE, J., joined except for the last paragraph. WHITE, J. (pp. 68–79), delivered a separate dissenting opinion.

I am not at all surpsised by the line-up here, which notably seems to go down party lines save for Clinton appointees Judges Gilam and Moore with the Republican-appointee-heavy marjority, and Bush appointees Judges Rogers and White voting with the Democratic-heavy dissenting minority.  Here is how the opinion of the Sixth Circuit majority ends:

At the end of the day, this is a case about who, not what — about who has authority to lower the Blewetts’ sentences, not what should be done with that authority. In holding that the courts lack authority to give the Blewetts a sentence reduction, we do not mean to discount the policy arguments for granting that reduction.  Although the various opinions in this case draw different conclusions about the law, they all agree that Congress should think seriously about making the new minimums retroactive.  Indeed, the Fair Sentencing Act, prospective though it is, dignifies much of what the Blewetts are saying as a matter of legislative reform and may well be a powerful ground for seeking relief from Congress. Yet the language of the relevant statutes (the Fair Sentencing Act, § 109 and § 3582(c)(2)) and the language of the relevant decisions (Dorsey, Davis and Harmelin) leave us no room to grant that relief here. Any request for a sentence reduction must be addressed to a higher tribunal (the Supreme Court) or to a different forum altogether (the Congress and the President).

Especially because I have a very busy teaching week, I am unlikely to find the time to read and assess these opinions in full for a little while.  Moreover, because I have a much more robust view of the limits of the Eighth Amendment than most members of the federal judiciary, I suspect I will not be moved by how the majority disposed of this matter with reference to Harmelin and other cases which do not involve the sui generis reality of sustaining lengthy federal prison terms that have been resoundly and repeatedly rejected and disavowed by all other branches of the federal government and by all the states in the Union as well. 

December 3, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Calling out DOJ for talking the talk, but not walking the walk, on mandatory minimums

Andrew Cohen has this lengthy and effective new piece via The Atlantic highlighting a case in the SCOTUS cert pool that highlights the ways federal prosecutors are able to use mandatory minimums to force judges to impose lengthy prison terms for drug offenders. The piece's headline and sub-head highlight its themes: "Attorney General Mean What He Says About Sentencing Reform?: Eric Holder has spent a great deal of time and energy lately advocating for reforms to mandatory minimum sentences. So why is the federal government trying to stiff Clarvee Gomez in court?".  And here is how piece starts and concludes:

When the justices of the United States Supreme Court confer Friday morning to consider new cases they will have the opportunity to accept for review a dispute that tests not just the meaning of their own recent Sixth Amendment precedent but the viability of a major new policy initiative implemented this summer by the Justice Department to bring more fairness to federal sentencing while reducing the terrible costs of prison overcrowding.

In Gomez v. United States, a Massachusetts case, the justices have been asked to determine whether they meant what they wrote about juries and drug sentences in Alleyne v. United States, decided just this past June, and at the same time whether Attorney General Eric Holder meant what he said, in August, when he promised to curb the ways in which his federal prosecutors abuse "mandatory minimum" sentences in drug cases to obtain guilty pleas (or higher sentences).

The justices should accept this case for review. And the Court should affirm the just principle that a man cannot constitutionally be sentenced based upon charges that are not brought or upon facts a jury does not even hear. But even if the justices aren't willing to muster up that level of indignation, they ought to at least take the opportunity to call out federal prosecutors for saying one thing in front of the microphones and another in court papers....

The government's positions in this case — both the tactics employed by Gomez's prosecutors and the arguments made now by federal attorneys — are utterly inconsistent with the much-publicized policies the Attorney General himself promulgated this summer....

Even after the Court's mandate in Alleyne, even after the Attorney General's pointed memorandum, even after all the public speeches about sentencing reform, federal attorneys still are trying to argue that the result in the Gomez case is both fair and constitutional. It is neither and the Supreme Court ought to say so — or at least expose the incoherence and hypocrisy of the government's position. If true sentencing reform is going to come it's going to come one case at a time — and this is as good a case as any to start.

December 3, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, November 29, 2013

Louisiana Supreme Court at crosshairs of strong gun rights and tough drug laws

Cross-hairAs reported in this effective local article, headlined "Court considering second major gun law: La. drug-gun statute latest to face review," the top court in the Pelican State has a lot of interesting legal issues to sort out in the wake of state voters having last year approved by a gun-rights constitutional amendment backed by the National Rifle Association.  Here are the particulars:

Amid the growing confusion over whether Louisiana’s litany of gun crimes violates its residents’ turbocharged right to bear arms, the state Supreme Court has decided it will try to settle one of the most consequential questions: Does it remain constitutional to charge a person with a high-grade felony for having a gun at the same time as illegal drugs, no matter what kind of drugs or how much?

Rico Webb, a 22-year-old caught in a car with one marijuana cigar and a gun, points to a state constitutional amendment passed last year, applauded by conservatives and the National Rifle Association, that for the first time in American history declared gun ownership a fundamental right in Louisiana, subject to the same level of judicial scrutiny as free speech and voter equality.

The amendment provoked an avalanche of legal challenges to the state’s major gun-crime laws. At least three judges have declared various criminal statutes unconstitutional. The Louisiana Supreme Court is tasked with sorting out the mess.

The high court already is considering the statute that forbids certain felons from possessing firearms. It heard oral arguments last month, and its decision is pending.  In the meantime, the court agreed on Friday to take up Webb’s challenge to the law that punishes the possession of guns and drugs with five to 10 years in prison without the possibility of parole....

The constitutional amendment sailed through the Legislature last year and received overwhelming support from voters at the ballot box. Its proponents, both inside and outside the Legislature, defended the measure as a guarantee of freedom if federal gun protections were to somehow fall.

But critics described it as an unnecessary law that solved no problem.  Louisiana already had among the most liberal gun laws in the nation. All the amendment has accomplished, they say, is widespread constitutional chaos that could endanger public safety and waste hundreds of courthouse hours on the taxpayers’ dime.

The measure was pitched by conservative legislators as a state equivalent to the Second Amendment.  But in practice, it goes far past the protections offered by the U.S. Constitution.  The amendment erased language in the law that allowed the Legislature to prohibit carrying a concealed weapon and specified that, for the first time anywhere in the nation, gun laws would be subject to a “strict scrutiny” test, the highest level of judicial review.

“What the Legislature did is it took discretion away from itself,” said Raymond Diamond, a LSU law professor and Second Amendment scholar.  “This pro-gun Legislature voted to bind itself, and future Legislatures that might not be so pro-gun, from undertaking gun control. It has similarly binded local communities in ways that right now we really don’t understand.”  He has described the amendment as “a can of worms.”

It pushed the Louisiana Supreme Court to become the first in America to analyze criminal gun statutes using a strict scrutiny test.  That test presumes that every person has the right to be armed. Any law that seeks to infringe that right must pass a grueling legal test that kills more than two-third of the laws that come up against it.  The state must show that the law serves a compelling government interest, and that it is so narrowly defined that there is no less restrictive way of achieving that interest.

The arguments against the current statutes are similar, in that they equally dole out “heavy-handed penalties” to vast groups of people.  The drug statute treats people caught with small amounts of marijuana the same as those with large amounts of more serious drugs.  The felon-with-a-gun statute equates burglars with murderers. It includes a list of 150 felony offenses, characterized as drug or violence crimes, and says that anyone convicted of any of them is barred from possessing a firearm for 10 years after being released from prison.

The state supports that law by arguing that those with a demonstrated capacity to break the law are more dangerous when armed. Its position on the drugs-and-gun statute is the same: Drugs beget violence and guns make volatile situations deadly.

But Webb’s attorney, New Orleans public defender Colin Reingold, argues that the state cannot prove, under a strict-scrutiny test, that a single marijuana blunt makes him more dangerous when armed than anyone else, particularly since the possession of alcohol and guns is not equally restricted.  “The true danger of a firearm comes not from the manner in which its owner keeps or bears it, but rather from how the citizen uses the weapon,” Reingold wrote in his appeal to the Supreme Court.

Webb, who has no criminal record, was arrested on Sept. 10, 2012, when police pulled over his girlfriend for having a broken taillight.  He confessed to police that he had the blunt in his backpack and said the gun on the floorboard was his, too.  The gun was legal and the marijuana alone would have amounted to a misdemeanor, prosecuted in Municipal Court and typically punished with a fine and probation.  But combined, the gun and pot became a felony with a minimum sentence of five years and a maximum of 10 years, without the possibility of parole.

Webb appealed his charge to the Louisiana Supreme Court, which announced on Friday it would hear the case.  Over the years, the courts will have to sort out which of the 80 other gun crimes on Louisiana law books remain constitutional under the new amendment.

The state has become an experiment. “This is an exciting time because there is some risk that some of the laws will be declared unconstitutional,” Diamond said.  “Everybody’s very interested to see what the court’s going to do with it.”

Various prior Second Amendment and gun policy posts:

November 29, 2013 in Drug Offense Sentencing, Gun policy and sentencing, Mandatory minimum sentencing statutes, Second Amendment issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, November 22, 2013

Two notable Sixth Circuit rejections of notable sentencing appeals by notable defendants

While I was distracted by teaching responsibilities, the Sixth Circuit yesterday handed down two notable (and lengthy) opinions rejecting two distinct defendants' intriguing claims concerning two distinct sentencing outcomes.  The first paragraphs of each opinion highlights why both cases are worthy of full reads:

US v. Volkman, No. 12-3212 (6th Cir. Nov. 21, 2013) (available here):

When a doctor first enters the practice of medicine, he or she swears to abide by a prime directive of the profession: “First, do no harm.”  Paul Volkman breached this sacrosanct tenet when he prescribed narcotics to addicts and individuals with physical, mental, and psychological frailties.  A federal jury looked at Volkman’s actions and found him guilty of breaking several laws, chief among them the law prohibiting the unlawful distribution of controlled substances.  After receiving the jury’s verdict, the district court sentenced Volkman to four consecutive terms of life imprisonment, to be served concurrently with a number of less-lengthy terms.

Volkman now appeals, contending that several errors arose throughout the course of his trial and sentencing.  We disagree, and we AFFIRM Volkman’s convictions and sentence.

US v. Marshall, No. 12-3805 (6th Cir. Nov. 21, 2013) (available here):

Dylan Marshall pled guilty to receiving child pornography over a period of 5 years, from the time he was 15 un til he was 20.  The district court varied downward from the guideline range and sentenced him to 5 years in prison — the mandatory minimum sentence for the offense — expressing its concerns with the perceived harshness of that sentence as it did so.  Marshall has a rare physiological condition called Human Growth Hormone Deficiency, which he believes entitles him to the Eighth Amendment protections accorded to juveniles. But despite his condition, Marshall was an adult at the time of the offense. We therefore affirm his sentence.

November 22, 2013 in Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Sunday, November 17, 2013

"Sentenced to a Slow Death"

The title of this post is the headline of this new New York Times editorial discussing this week's noteworthy new ACLU report on the thousands of persons serving LWOP sentences for non-violent offenses in the United States (first discussed here).  Here are excerpts:

If this were happening in any other country, Americans would be aghast. A sentence of life in prison, without the possibility of parole, for trying to sell $10 of marijuana to an undercover officer?  For sharing LSD at a Grateful Dead concert?  For siphoning gas from a truck?  The punishment is so extreme, so irrational, so wildly disproportionate to the crime that it defies explanation.

And yet this is happening every day in federal and state courts across the United States. Judges, bound by mandatory sentencing laws that they openly denounce, are sending people away for the rest of their lives for committing nonviolent drug and property crimes. In nearly 20 percent of cases, it was the person’s first offense.

As of 2012, there were 3,278 prisoners serving sentences of life without parole for such crimes, according to an extensive and astonishing report issued Wednesday by the American Civil Liberties Union. And that number is conservative.  It doesn’t include inmates serving sentences of, say, 350 years for a series of nonviolent drug sales.  Nor does it include those in prison for crimes legally classified as “violent” even though they did not involve actual violence, like failing to report to a halfway house or trying to steal an unoccupied car....

As in the rest of the penal system, the racial disparity is vast: in the federal courts, blacks are 20 times more likely than whites to be sentenced to life without parole for nonviolent crimes.  The report estimates that the cost of imprisoning just these 3,278 people for life instead of a more proportionate length of time is $1.78 billion....

Several states are reforming sentencing laws to curb the mass incarceration binge.  And Congress is considering at least two bipartisan bills that would partly restore to judges the power to issue appropriate sentences, unbound by mandatory minimums.  These are positive steps, but they do not go far enough.  As the report recommends, federal and state legislators should ban sentences of life without parole for nonviolent crimes, both for those already serving these sentences and in future cases.  President Obama and state governors should also use executive clemency to commute existing sentences.  Just one-fifth of all countries allow a sentence of life without parole, and most of those reserve it for murder or repeated violent crimes.  If the United States is to call itself a civilized nation, it must end this cruel and ineffective practice.

Recent related posts:

November 17, 2013 in Mandatory minimum sentencing statutes, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (5) | TrackBack

Wednesday, November 13, 2013

Fourth Circuit rejects effort to use Miller to assail ACCA enhancements based on juve priors

In a not surprising but still noteworthy panel opinion, the Fourth Circuit today in US v. Hunter, No. 12-5035 (4th Cir. Nov. 13, 2013) (available here), rejected a federal defendant's effort to use the Supreme Court's Miller ruling to contest a lengthy mandatory minimum sentence for an adult crime based on prior offenses committed when the defendant was a juvenile.  Here is how Hunter begins:

In Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012), the Supreme Court announced that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” Relying on Miller, Defendant Jimmy Eliab Hunter appeals from his sentence for being a felon in possession of a firearm, asserting that the district court erred in sentencing him as an armed career criminal based on violent felonies he committed as a juvenile.  But unlike the juveniles in Miller, Defendant’s sentence here punishes him for an offense he committed at the age of thirty-three, well past an age when “the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences.” Id. at 2465. Thus, proportionality concerns expressed in Miller regarding youthful offenders are not implicated here.  Finding Miller, Defendant’s sole basis for his Eighth Amendment challenge, inapplicable, we affirm.

November 13, 2013 in Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

New ACLU report spotlights thousands of nonviolent prisoners serving LWOP terms

Lwop-marquee-230x230-v01The ACLU has released a huge new report giving focused attention to the thousands of prisoners serving life without parole sentences in the United States for nonviolent drug and property crimes. This massive new report, which can be accessed at this link, is titled "A Living Death: Life without Parole for Nonviolent Offenses." This related webpage highlights some specific defendants and cases with this introduction:

For 3,278 people, it was nonviolent offenses like stealing a $159 jacket or serving as a middleman in the sale of $10 of marijuana. An estimated 65% of them are Black. Many of them were struggling with mental illness, drug dependency or financial desperation when they committed their crimes. None of them will ever come home to their parents and children. And taxpayers are spending billions to keep them behind bars.

Here is an excerpt from the 200+ page report's executive summary:

Using data obtained from the Bureau of Prisons and state Departments of Corrections, the ACLU calculates that as of 2012, there were 3,278 prisoners serving LWOP for nonviolent drug and property crimes in the federal system and in nine states that provided such statistics (there may well be more such prisoners in other states).  About 79 percent of these 3,278 prisoners are serving LWOP for nonviolent drug crimes.  Nearly two-thirds of prisoners serving LWOP for nonviolent offenses nationwide are in the federal system; of these, 96 percent are serving LWOP for drug crimes.  More than 18 percent of federal prisoners surveyed by the ACLU are serving LWOP for their first offenses.  Of the states that sentence nonviolent offenders to LWOP, Louisiana, Florida, Alabama, Mississippi, South Carolina, and Oklahoma have the highest numbers of prisoners serving LWOP for nonviolent crimes, largely due to three-strikes and other kinds of habitual offender laws that mandate an LWOP sentence for the commission of a nonviolent crime. The overwhelming majority (83.4 percent) of the LWOP sentences for nonviolent crimes surveyed by the ACLU were mandatory.  In these cases, the sentencing judges had no choice in sentencing due to laws requiring mandatory minimum periods of imprisonment, habitual offender laws, statutory penalty enhancements, or other sentencing rules that mandated LWOP.  Prosecutors, on the other hand, have immense power over defendants’ fates: whether or not to charge a defendant with a sentencing enhancement triggering an LWOP sentence is within their discretion.  In case after case reviewed by the ACLU, the sentencing judge said on the record that he or she opposed the mandatory LWOP sentence as too severe but had no discretion to take individual circumstances into account or override the prosecutor’s charging decision.

As striking as they are, the numbers documented in this report underrepresent the true number of people who will die in prison after being convicted of a nonviolent crime in this country.  The thousands of people noted above do not include the substantial number of prisoners who will die behind bars after being convicted of a crime classified as “violent” (such as a conviction for assault after a bar fight), nor do the numbers include “de facto” LWOP sentences that exceed the convicted person’s natural lifespan, such as a sentence of 350 years for a series of nonviolent drug sales.  Although less-violent and de facto LWOP cases fall outside of the scope of this report, they remain a troubling manifestation of extreme sentencing policies in this country.

November 13, 2013 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (19) | TrackBack

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