Friday, April 26, 2013

Current NRA president vocally supporting (liberal? conservative?) mandatory minimum sentencing reform in Oregon

David Keene, a former chairman of the American Conservative Union who is now serving as president of the National Rifle Association, has this notable new commentary piece in the Salem Statesman Journal promoting sentencing reform in the Beaver State. Here are excerpts:

If you are an Oregon conservative, I hope you’re asking the same question the state’s bipartisan Commission on Public Safety asked: “Are taxpayers getting the most from the money we spend on public safety?”  Oregon has been a leader in effective corrections policy and boasts one of the lowest recidivism rates in the nation.

But the state is trending in the wrong direction when it comes to corrections spending, and much of the growth is due to mandatory minimum sentences that violate conservative principles.

Oregon criminal justice agencies predict that the state’s prison population will grow significantly over the next 10 years, and that the growth will be composed mostly of nonviolent offenders. The expected inmate surge is projected to cost Oregon taxpayers $600 million, on top of the biennial corrections budget of $1.3 billion.

The time is ripe for comprehensive criminal justice reform — not only supported by Oregon conservatives, but led by Oregon conservatives.

We believe all government spending programs need to be put to the cost-benefit test, and criminal justice is no exception.  Oregon has done a good job with this in the past but is slipping, by locking up more offenders who could be held accountable with shorter sentences followed by more effective, less expensive local supervision programs....

As conservatives, we also believe that a key to protecting our freedom is maintaining the separation of powers between the branches of government.  Such protection is lost when so-called “mandatory minimum” sentences force the judicial branch to impose broad-brush responses to nuanced problems.  Mandatory minimums were adopted in response to the abuses of a few judges decades ago, but have proven a blunt, costly and constitutionally problematic one-size-fits-all solution begging for reform.

The commission’s recommendations make modest prospective changes to mandatory minimums under Measures 11 and 57.  These measures have given prosecutors unchecked power to determine sentences by way of charging decisions, regardless of the facts of the case, or the individual’s history and likelihood of re-offending.

The reform package now before the Legislature would restore the constitutional role of the courts for three of the 22 offenses covered by Measure 11. Judges could still impose the stiffest penalties where necessary, but would regain discretion in sentencing appropriate offenders to shorter prison terms or less expensive, more intensive community supervision.

These sensible reforms will restore some checks and balances between prosecutors and the courts, allow prison resources to be focused on serious violent offenders and let taxpayers know that their public safety dollars are being spent more wisely.

April 26, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (8) | TrackBack

Wednesday, April 24, 2013

Justice Safety Valve Act gets bipartisan introduction in House of Representatives

A helpful media members forwarded me a press release which provided the basis for this notable federal sentencing news from inside the Beltway:

Rep. Robert C. “Bobby” Scott, D-VA, and Rep. Thomas Massie, a Republican from Kentucky, today introduced the bipartisan Justice Safety Valve Act of 2013, which would give federal judges the flexibility to issue sentences below mandatory minimums.

Republican Sen. Rand Paul of Kentucky and Sen. Patrick Leahy, a Democrat from Vermont and chairman of the Senate Judiciary Committee, had previously introduced a Senate version of the bill on March 20.

Scott said that mandatory minimum sentences have been shown to mandate unjust results.  “They have a racially discriminatory impact, studies conclude that they waste the taxpayer’s money, and they often violate common sense,” he said.

Massie added that the one size fits all approach of federally mandated minimums does not give local judges the latitude they need to ensure that punishments fit the crimes. “As a result, nonviolent offenders are sometimes given excessive sentences,” Massie said. ”Furthermore, public safety can be compromised because violent offenders are released from our nation’s overcrowded prisons to make room for nonviolent offenders,” he said.

Now that there is bipartisan support in both houses of Congress for the Justice Safety Valve Act of 2013 (Senate story covered here), we finally have the foundation and the opportunity to find out if President Obama and his Department of Justice are prepared to start walking the walk (instead of just talking the talk) about the need for cost-conscious, data-driven modern federal sentencing reforms.  importantly, the Justice Safety Valve Act of 2013 is a big deal in the formal law which would really not be that big deal in actual practice: the law essentially provides that now-mandatory minimum statutory sentencing terms would be presumptive minimum sentencing provisions for federal judges (which, of course, has always been their status for federal prosecutors, who have charging/bargaining powers that can allow them to take mandatory off the table when it suits their interests).

Especially in the early part of a second term, with federal criminal justice actors dealing with budget cuts and furloughs, and with most Americans pleased with the possibility of federal charges in Boston including a (discretionary) death sentencing system, now is the time for President Obama to finally live up to his 2007 campaign promise at Howard university (covered here) to "review mandatory minimum drug sentencing to see where we can be smarter on crime and reduce the blind and counterproductive warehousing of non-violent offenders."  If not now, when?  And if not with support of the Justice Safety Valve Act of 2013, how?

Less than three weeks ago, Attorny General Holder stated forcefully in a big speech (covered here) that, in the United States today, "too many people go to too many prisons for far too long for no good law enforcement reason." In that same speech, AG Holder stated plainly: "Statutes passed by legislatures that mandate sentences, irrespective of the unique facts of an individual case, too often bear no relation to the conduct at issue, breed disrespect for the system, and are ultimately counterproductive." The Justice Safetly Valve Act of 2013 could and would (especially if made retroactive) directly and perhaps profoundly address these issues in the federal sentencing system via one simple bill.

If President Obama and AG Holder really mean what they say and say what they really mean, we should expect press releases coming from the Department of Justice and the White House putting the force force and weight of the Obama Administration behind the Justice Safetly Valve Act of 2013 and urging its passage ASAP.  But I fear that we will not be seeing such a press release in the near future -- that worrisome reality will, in turn, lead me again to my growing concern that the Obama Administration's persistent failure to champion badly needed sentencing reforms will become its most lasting federal criminal justice legacy.

Some recent and older related posts:

April 24, 2013 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (37) | TrackBack

Friday, April 05, 2013

Rand Paul begins forceful pitch in campaign against federal mandatory minimums

Rand Paul

I suspect that US Attorney General Eric Holder and US Senator Rand Paul do not have the same position on a lot of different issues.  And yet, today in the post right after this post covering a big speech by AG Holder in which he suggests exploring ways "to give judges more flexibility in determining certain sentences," I get to highlight this new op-ed in the Washington Times by Senator Paul which assails federal minimum sentencing laws for taking sentencing authority "away from the jury and judge."

I urge everyone to read Senator Paul's op-ed in full, and here are just a few passages that prompted me to find and post the picture that accompanies this posting:

Mandatory minimums reflect two of the biggest problems in Washington: The first problem is the idea that there should be a Washington-knows-best, one-size-fits-all approach to all problems, be they social, educational or criminal. This approach leads to our second problem: Washington’s habit of undermining the system our Founding Fathers created. Their system left as much power as possible in the hands of local and state officials, and sought to treat people as individuals, not as groups or classes of people.

Last year in my community, a family lost one of their sons to an overdose. They almost lost their other son to a mandatory minimum sentencing. Federal law requires a mandatory 20-year sentence if a death occurs, even an accidental one. If prosecutors had charged the surviving brother in federal court, he would have received a mandatory 20-year sentence.

When a crime is committed, it should fall to the local prosecutor, judge and jury to determine the guilt or innocence, as well as determine the just punishment for the crime. In the current system of federal mandatory-minimum sentencing, the authority is taken away from the jury and judge, and given by the legislature to the executive. Prosecutors already have tremendous power because they collect the evidence and choose which crimes to charge. If a mandatory penalty is attached to that crime, the prosecutor then exerts much influence over the entire procedure, including the sentence.

Our Founding Fathers went to great lengths to prevent the executive and prosecutors from obtaining too much power. The Fourth Amendment was written to stop overzealous searches, and the Fifth and Sixth Amendments were written to establish full due process as an inalienable right.

Ignoring these rights comes with several tangible costs. In the last 30 years, the number of federal inmates has increased from 25,000 to nearly 219,000. That is nearly a 10-fold increase in federal prisoners, each of whom cost the taxpayers $29,027 a year to incarcerate. The federal prison budget has doubled in 10 years to more than $6 billion.

Half of the people sentenced to federal prison are drug offenders. Some are simply drug addicts, who would be better served in a treatment facility. Most are nonviolent and should be punished in ways that do not require spending decades in a federal prison, with meals and health care provided by the taxpayers.

For these reasons and others, last week I joined my colleague Sen. Patrick Leahy, Vermont Democrat, in introducing a bill that would authorize judges to disregard federal mandatory-minimum sentencing on a case-by-case basis.

Some might think it is unusual for a conservative Republican to join a liberal Democrat on such a bill, but contrary to popular belief, the protection of civil liberties and adherence to the Constitution should be a bipartisan effort....

I will speak more about this in a speech I am giving at Howard University on April 10.  I hope to engage conservatives and liberals in a discussion of how the federal government should handle mandatory minimums and the reforms needed to secure our Fourth, Fifth and Sixth Amendment rights.  How much of our liberty are we willing to yield to the government in the name of a false sense security?  This is a debate that crosses many issues, and deserves full and fair exploration.

Ever the sentencing geek, I am already giddy in anticipation concerning Senator Paul's upcoming speech on these issues at Howard University. The setting is notable in part because way back in 2007, as blogged here and here, then-Senator Obama gave a big speech about the need for federal criminal justice reforms.   I would be foolish to assert that talking the talk about criminal justice at Howard University is a key step toward becoming US President, but I do not think it is foolish to assert that Rand Paul has (in my view, wisely) perhaps figured out that it may be politically valuable to speak forcefully and in constitutional terms about the need for significant federal criminal justice reform.

Some recent and older related posts:

April 5, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Monday, March 25, 2013

Eleventh Circuit discusses key factor in application of federal safety valve

While on the road, I missed an intriguing lengthy Eleventh Circuit panel decision in US v. Carillo-Ayala, No. 11-14473 (11th Cir. Mar. 22, 2013) (available here), concerning the application of the safety-valve provision of federal law allowing sentencing below an otherwise applicable mandatory minimum.  Here is how the opinion gets started:

This case presents an issue of first impression in this Court concerning the “safety valve,” but one the trial judge noted is an all too frequent conundrum for a sentencing judge. When a defendant stands convicted of a drug offense carrying mandatory minimum terms of imprisonment and supervised release, the sentencing judge may impose a sentence below the other wise mandatory minimum terms if the defendant meets five criteria. 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2.  Only one of the five criteria is relevant here.  It requires the defendant to show that he “did not . . . possess a firearm . . . in connection with the offense.” 18 U.S.C. § 3553(f)(2); U.S.S.G. § 5C1.2(a)(2).

Defendant Arturo Carillo-Ayala admits he was a drug dealer and admits he sold firearms, but his ostensible business plan was “Guns and Drugs Sold Separately.”  The question before us is whether a drug-dealer who also sells firearms to a drug customer possesses those firearms “in connection with” the charged drug offense.  The answer is “not necessarily.”

March 25, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Wednesday, March 20, 2013

"Bipartisan Legislation To Give Judges More Flexibility For Federal Sentences Introduced"

The title of this post is the headline of this notable new press release now available at the website of Senator Patrick Leahy. Here is how it starts:

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Senator Rand Paul (R-Ky.) introduced bipartisan legislation Wednesday to allow judges greater flexibility in sentencing federal crimes where a mandatory minimum punishment is considered unnecessary.

The bipartisan Justice Safety Valve Act of 2013 expands the so-called “safety valve” that allows judges to impose a sentence below the mandatory minimum in qualifying drug cases to all federal crimes.  By giving judges this greater flexibility, they will not be forced to administer needlessly long sentences for certain offenders, which is a significant factor in the ever-increasing Federal prison population and the spiraling costs that steer more and more of the justice budget toward keeping people in prison, rather than investing in programs that keep our communities safe.

“As a former prosecutor, I understand that criminals must be held accountable, and that long sentences are sometimes necessary to keep criminals off the street and deter those who would commit violent crime,” Leahy said.  “Our reliance on mandatory minimums has been a great mistake.  I am not convinced it has reduced crime, but I am convinced it has imprisoned people, particularly non-violent offenders, for far longer than is just or beneficial. It is time for us to let judges go back to acting as judges and making decisions based on the individual facts before them.  A one-size-fits-all approach to sentencing does not make us safer.”

Paul said that “Our country’s mandatory minimum laws reflect a Washington-knows-best, one-size-fits-all approach, which undermines the Constitutional Separation of Powers, violates the our bedrock principle that people should be treated as individuals, and costs the taxpayers money without making them any safer.  This bill is necessary to combat the explosion of new federal criminal laws, many of which carry new mandatory minimum penalties.”

Because Senator Leahy is doing some notable work today on the drone and immigration reform fronts, I suspect that today's introduction of the Justice Safety Valve Act of 2013 will not get as much attention from the MSM as I might think it merits.   That said, I expect (and hope) that this story will get some broader attention due to the fact that GOP rock-star Senator Rand Paul is the other big initial player in this important federal sentencing reform effort.  (To start, I am very pleased to see that John Gramlich has produced this lengthy and informative piece about the bill in CQ Roll Call.)

Not surprisingly, the folks at Families Against Mandatory Minimums are excited about this development, and this new FAMM press release details some additional notable content that FAMM has produced in conjunction with this new bill.  Here are excerpts and links:

FAMM President Julie Stewart today hailed the introduction of The Justice Safety Valve Act of 2013 (S. 619), a bipartisan federal bill that would save taxpayer dollars by reserving scarce federal prison beds for the most dangerous offenders.  The bill creates a “safety valve” that allows federal courts to impose sentences below the mandatory minimum sentence under specific conditions. The legislation was introduced on March 20 by Senator Patrick Leahy (D-VT), chair of the Senate Judiciary Committee, and Senator Rand Paul (R-KY), and referred to the Senate Judiciary Committee for consideration.

Stewart also announced the release of a new FAMM report entitled, “Turning Off the Spigot: How Sentencing Safety Valves Can Help States Protect Public Safety and Save Money.” The report details how eight states have embraced sentencing safety valves as a way of reducing prison populations and saving money, while at the same time protecting public safety....

The report concludes by recommending a safety valve that is similar to the Justice Safety Valve Act sponsored by Senators Paul and Leahy. FAMM plans to distribute the report to state legislators across the country who sit on crime-focused legislative committees."

For a comprehensive overview of the Justice Safety Valve, including the bill text, a summary of its benefits, profiles of individuals who would have been eligible for relief, and likely questions and answers, click here

To download FAMM’s report, “Turning Off the Spigot: How Sentencing Safety Valves Can Help States Protect Public Safety and Save Money”, click here.

March 20, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (18) | TrackBack

Tuesday, March 12, 2013

Notable debate in Wisconsin over new state child porn sentencing law

Regular readers are quite familiar with (and perhaps even tired of) the long-running debates over federal child pornography sentencing laws. But, as detailed in this local article from Wisconsin, headlined "New law limits judges' power in child pornography cases," similar issues and debates arise in states sentencing systems, too.  Here are excerpts from the article, which strikes all the usual themes concerning the impact of mandatory minimum sentencing provisions:

A new law intended to toughen punishment for those convicted of viewing child pornography is drawing criticism from court officials. 

In April 2012, state lawmakers passed into law a mandatory, minimum three-year prison sentence for the felony offense.  Under a clause in the old law, judges had the discretion to order lesser penalties depending on the circumstances of the case.

Rep. Mark Honadel, R-South Milwaukee, who sponsored the mandatory penalty, testified that judges were letting too many offenders stay out of prison. “Sentences of less than 3 years were meant to be issued sparingly but became the standard,” Honadel said.

State Rep. Jeremy Thiesfeldt, R-Fond du Lac, said the law was conceived as a way to provide consistent sentences for all offenders who commit the same crime.  “Prior to this, sentences were all over the map. In a judicial sense, this probably wasn’t the best way to operate,” Thiesfeldt said. “Anytime you can establish standards of fairness, that’s a good thing.”...

Fond du Lac County Circuit Court Judge Peter Grimm, who has worn the hat of a public defender and district attorney before his election to the bench 22 years ago, says judges need discretion in sentencing to ensure the punishment fits the circumstances of the crime and the criminal.  “These mandatory minimum sentences fly in the face of current judicial training in which judges are trained to use evidence-based sentences designed to let judges make the best decision based on the facts of the case,” said Grimm. “Judges should not be locked into a minimum sentence because the legislature wants to be tough on crime.”

Dodge County District Attorney Kurt Klomberg has mixed feelings concerning the new law. “The law does take discretion away from the judges.  The judge is no longer able to go below the minimum (sentence) even in the face of strong mitigating evidence,” Klomberg said.  “The prosecutor now has greater power in the sentencing process as the decision on the charge will be a decision on the minimum allowable sentence after conviction.”

Klomberg also recognizes that the new law could impact settlement in cases involving child pornography.   “The defendants in these cases are often willing to plead to the charges in hopes of convincing the judge to go below the minimum,” Klomberg said.  “Under the new law, there is no possibility, and it may result in more trials.”

Defense attorney and former Fond du Lac County District Attorney Michael O’Rourke disagrees with a one-size-fits-all approach.   “Each case and each defendant are different and judges should have the ability to fashion a sentence that is good for both the community and aids defendants in rehabilitation,” O’Rourke said

The former prosecutor says judges need discretion in sentencing to ensure the penalty doesn’t outweigh the crime.   “The retired 63-year-old with no previous record who went to an adult porn site and was browsing and clicked onto a site that includes child pornography and then looks at a couple of pictures is different than the person who may already have a record, or who is actively seeking child porn,” O’Rourke said.  “Some peer-to-peer sites will download thousands of images in seconds onto a computer and the individual has seen none of them.  A judge should have the discretion to consider that.”

Wisconsin’s new child pornography law offers one exception to the minimum sentence, Thiesfeldt said.  Several cases involving teens trading inappropriate pictures by cell phone prompted lawmakers to include a clause in which a judge can issue lesser penalties if the offender is no more than four years older than the child depicted.

March 12, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sex Offender Sentencing, State Sentencing Guidelines | Permalink | Comments (5) | TrackBack

Wednesday, February 20, 2013

Some notable recent NPR coverage of modern incarceration realities

I was pleased to hear on my local NPR station this afternoon, while I was driving around in my Prius looking for a good place to get a latte, this lengthy feature story concerning US incarceration levels on the On Point program.  Here is how the program is described via its website:

The Cost Of Prison: States fed up with high prison costs and mandatory sentencing move to change. Must the U.S. be number one in prisoners?

The USA is number one in the world when it comes to the number of people in prison. Bigger than China. Bigger than Russia. America’s prison population is tops. 2.2 million. Bigger than fifteen American states.  And its incarceration rate is number one.....  All that American imprisonment is very expensive. And very debatable when it comes to effectiveness, fairness -- to justice itself.  Now states across the country are reconsidering the mandatory sentencing policies and more that filled those cells. This hour, On Point: slimming down American prisons.

In addition, last week NPR had two new pieces as part of this special series titled "The Legacy And Future Of Mass Incarceration." Here are links and brief descriptions:

Decades On, Stiff Drug Sentence Leaves A Life 'Dismantled':  George Prendes was 23 when he was sentenced under New York's Rockefeller drug laws — tough mandatory sentencing guidelines for nonviolent drug crimes. The 15 years Prendes served for a drug transaction still reverberate for him and his family.

The Drug Laws That Changed How We Punish:  Forty years ago, New York enacted tough laws in response to a wave of drug-related crime. They became known as the Rockefeller drug laws, and they set the standard for states looking to get tough on crime.  But a new debate is under way over the effectiveness of such strict sentencing laws.

February 20, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, February 19, 2013

Grey Lady has lots of sentencing stories fit to print today

Seemingly just conincidentally, the New York Times has these three notable sentencing-related pieces in its print edition today.  Here are the headlines and the start of the stories in the order they appear in the paper:

February 19, 2013 in Mandatory minimum sentencing statutes, Offender Characteristics, Race, Class, and Gender, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, February 11, 2013

Intriguing (failed) effort to assail juve predicate for severe ACCA term

Though providing little solace to the losing criminal defendant, I am inclined to give blog points for creative defense advocacy efforts reflected in today's Tenth Circuit panel opinion in US v. Rich, No. 11-6342 (10th Cir. Feb 11, 2013) (available here).  Here is how the opinion starts:

Defendant Paul Everett Rich, III, pled guilty to one count of felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1).  Because he had been convicted of three predicate offenses, he qualified for enhanced punishment under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and was sentenced to the mandatory minimum of 180 months’ imprisonment.  Rich now appeals the imposition of the sentencing enhancement claiming: 1) his juvenile adjudication was “dismissed” by Oklahoma courts and should not be counted as a prior conviction under the ACCA; and 2) the ACCA violates substantive due process by considering these older, juvenile adjudications.  We affirm.

I tend to view any substantive due process claim to be the legal equivalent of a Hail Mary pass.  But the Tenth Circuit's thoughtful engagement with this claim in the published Rich opinion provide a useful reminder that, at least in court, defendants may often need to offer up a few long-shot prayers for relief before any one will ever likely be answered.

February 11, 2013 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Talk in Chicago of increasing mandatory minimum sentences for gun possession

Chicago gunsAs reported in this new local article from Chicago, that city's "mayor, cops and prosecutors are taking aim at Illinois’ gun possession laws — calling for longer mandatory prison terms and 'truth in sentencing'." Here are some of the details of the proposal and the sentencing debate is has started to engender:

Their wish list includes boosting the minimum required sentence for people convicted of gun possession from one year in prison to three years. They hope to increase the minimum sentence for felons caught with guns from two years to three years.

They also want everyone convicted of felony gun possession to be required to serve 85 percent of their sentences. Now those inmates must complete only half their terms — and sometimes much less after earning “good time” in prison.

Cook County State’s Attorney Anita Alvarez said the proposed reforms would deter more people from carrying guns illegally and would help curb violence. “The guys who are doing the shootings would be away from the corners for a longer time,” Alvarez said in an interview.

Mayor Rahm Emanuel, whose office drafted the legislative proposals, is expected to announce them Monday with Alvarez and other officials. “Criminals continue to escape with minor sentences for possessing and using firearms,” Emanuel said in a prepared statement.

For months, police Supt. Garry McCarthy has proposed lengthening the mandatory sentence for gun possession to three years, pointing to New York City, where he was once a high-ranking cop. The state of New York passed a 3½-year mandatory minimum sentence for illegal gun possession in 2007. The following year, NFL star Plaxico Burress was arrested after a handgun he was carrying accidentally discharged and shot him.

Burress pleaded guilty to a lesser offense and was hit with a two-year jail term, drawing national attention to New York City as a place that cracks down on illegal gun possession. Criminologists point to the mandatory gun sentence in New York as one of the reasons for the Big Apple’s continuing decline in violent crime.

Chicago — whose murder tally rose 16 percent to 506 last year — has about three times as many murders per capita as New York. Also, about 85 percent of murders in Chicago involve a gun, compared to about 60 percent in New York.

While the cops and prosecutors in charge of locking up criminals support lengthier sentences, one judge said the General Assembly — and the public — need to think hard before making the gun laws harsher. “As a taxpayer of this state, I would hope the legislators are cognizant that creating mandatory minimum sentences creates a financial consequence to the state,” said Cook County Judge Nicholas Ford.  “A lot of judges bristle at mandatory minimum sentences.  It’s not my position to question it.  It’s my job to enforce whatever the legislature forwards me.

“But for a person who’s never been convicted of a felony, for a person who’s never committed a violent crime, for a taxpayer who’s never had any problems with the law, I wonder about that,” Ford said.

Alvarez responded that few people without criminal backgrounds are charged with felony gun possession in Cook County.  “You will see that once in a while, but that is when our discretion [as prosecutors] comes into play in charging and in looking at cases once they’re in the system,” she said.

Supporters of mandatory minimum sentences say they also provide a predictable outcome. Indeed, a Chicago Sun-Times examination found wide disparities in how often Cook County judges put people behind bars for gun possession before mandatory minimum sentences fully took effect in early 2011.

Ford, for example, sentenced 42 defendants for gun possession and sent about 76 percent to prison. About 21 percent received probation and 2 percent went to boot camp. The length of his average prison sentence was almost two and a half years. Judge Michael Brown, meanwhile, sentenced 45 defendants. About half went to prison, 23 percent received community service, 18 percent probation and 5 percent boot camp. But the length of his average prison sentence was more than three years.

Overall, Cook County judges sent nearly three-quarters of such defendants to prison for an average sentence of almost two and a half years.  About 14 percent got probation, 6 percent boot camp and 4 percent community service.  The newspaper studied 2011 sentencing outcomes in felony gun possession cases that didn’t include other types of crimes.

Many of those cases involved 2010 arrests, which didn’t apply to the mandatory minimum sentences that took effect in 2011. A separate law that took effect in late 2009 requires a minimum sentence of three years for gang members convicted of carrying a loaded gun.

The Sun-Times analysis found that judges sometimes sentenced defendants to Cook County boot camp — a four-month program with eight additional months of strict supervision. Ford called boot camp a “really solid disposition” for younger defendants without a felony record or violent background.

But Alvarez said she doesn’t think judges should have the option to sentence such defendants to boot camp. “It’s not ‘pen’ time,” she said. “I think the law is clear that they should not be giving boot camp, but judges see it a different way.”

Alvarez said she’s considering discussing the matter with Cook County Chief Judge Timothy Evans and “seeing if there’s something we need to change legislatively — or litigate it.” As Alvarez and other politicians pursue tougher gun laws, one man convicted of illegal gun possession surprisingly said they’re right.

Matthew Munoz, 24, was arrested in 2011 after he and his pals got into a squabble with rival gang members on the South Side.... Munoz was eligible for probation because his crime happened in 2010, before the one-year mandatory minimum took effect. He was sentenced to two years’ probation, but after one year he messed up when he tried to foil a drug test.

Munoz was sent to prison. But because he got credit for time he spent in the Cook County Jail, he said he spent only one day at Stateville Correctional Center. “It’s called ‘dress in and dress out,’ ” he said.

Munoz is now on parole, which he vows to complete successfully. He plans to go to school and get a job. “Some people need prison to learn their lesson,” Munoz said. “I wish I got sent to prison a long time ago. I kept getting probation for this and that. . . . Chicago is getting out of control with the gang violence. They should send those guys to prison — even guys like me.”

As serious sentencing fans know well, and as this article helps highlight, mandatory minimum sentencing laws do not really mandate prison for all offenders.  Rather, they mostly serve to transfer the discretion as to which offenders go to prison from judges to prosecutors. 

If there is good research indicating that this transfer of discretion in the gun crime settings help to reduce illegal gun use and gun violence, I can understand why folks in Chicago and elsewhere think increased mandatory minimums should be a needed response to gun crimes and gun violence.  But, as lots of research and experience reveals in the federal system and elsewhere, having prosecutors as exercising the most sentencing discretion via mandatory minimums tends to increase sentencing disparities, not ensure that similar defendants always receive similar sentences.

Recent and older related posts:

February 11, 2013 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (16) | TrackBack

Friday, February 01, 2013

"Medical marijuana grower gets 5 years in federal prison"

The title of this post is the headline of this article from Montana concerning a high-profile federal sentencing case (which I have not recently blogged about because I ended up, for complicated reasons, meddling in a little part of the sentencing process).  Here are the basics:

Medical marijuana grower Chris Williams was sentenced Friday to a mandatory five years on a federal gun charge, and time served on a marijuana charge. In sentencing Williams, U.S. District Court Judge Dana Christensen called him “a principled man, stubborn in his beliefs, [who] remains steadfast in his conviction that he has done nothing wrong.”

Williams was convicted in a September trial of four federal drug counts and four weapons counts in connection with his involvement in Montana Cannabis, a large medical marijuana grow operation with a greenhouse in Helena and operations around the state.  It was one of scores of medical marijuana businesses around Montana that sprang up after voters legalized the medical use of cannabis in 2004. But marijuana remains illegal under federal law, and agents raided many of those businesses in March 2011.  All the other people charged in connection with those raids made plea agreements with the government; Williams was the only one to insist upon a trial.

He could have faced mandatory minimum sentences totaling 85 years -- 80 of those on the firearms charges alone.  “It was my belief that an 85-year sentence in this case would have been unjust,” Christensen said Friday in reviewing the history of the case.  So he urged a settlement conference, presided over by U.S. District Judge Donald Molloy, in which the government agreed to drop all but one of the drug charges and one of the gun charges, in exchange for Williams’ promise not to appeal.

That obligated Christensen to sentence Williams only to five years on the gun charge (penalties would have increased for each addition weapons charge).  In addition to the five years on the charge of possession of a firearm during a drug-trafficking offense, Christensen sentenced Williams to the 130 days he’s already served, on the charge of possession with intent to distribute marijuana.  He also sentenced Williams to four years’ supervised probation on the drug charge, and five years on the gun charge, to run concurrently, and levied the standard $100 federal fee on each charge.

Many in the courtroom packed with Williams’ supporters -- and one pug service dog -- wept as the sentence was pronounced.  “He has done nothing wrong,” said Karie Boiter of Seattle, who described herself as a “full-time supporter of Chris Williams.”  She was among several medical marijuana advocates who traveled in a green school bus from California, picking up people along the way to Missoula, to attend Friday’s sentencing.  The group held a brief protest outside the federal courthouse Friday morning....

Williams was taken immediately into custody Friday.  Christensen recommended that he serve his time in the federal prison in Sheridan, Ore., so that he can be as close as possible to his 16-year-old son, a student at Montana State University.

Prior posts on Williams case and related prosecutions:

February 1, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing | Permalink | Comments (25) | TrackBack

Tuesday, January 29, 2013

US District Judge Gleeson assails drug guidelines in another potent opinon

A number of helpful readers made sure I did not miss the latest doozy of an opinion issued by US District Judge John Gleeson in United States v. Diaz, No. 11-CR-00821-2 (E.D.N.Y. Jan. 28, 2013) (available for download below).  The opinion is a must-read for various reasons — one reader described it to me as an "instant classic" — and these opening points hint at the opinion's coverage:

Last year in United States v. Dossie, I wrote about how the mandatory minimum sentences in drug trafficking cases distort the sentencing process and mandate unjust sentences. This case illustrates a separate but related defect in our federal sentencing regime....

Diaz will be sentenced in a few weeks, and when that happens I will carefully consider all the factors set forth in 18 U.S.C. § 3553(a) except one — the length of imprisonment recommended by the United States Sentencing Commission’s Guidelines Manual. Though I will not ignore Diaz’s Guidelines range, I will place almost no weight on it because of my fundamental policy disagreement with the offense guideline that produces it. In fairness to the government, I write here to explain my belief that the offense guideline for heroin, cocaine, and crack offenses (“drug trafficking offenses”) is deeply and structurally flawed. As a result, it produces ranges that are excessively severe across a broad range of cases, including this one.

The flaw is simply stated: the Guidelines ranges for drug trafficking offenses are not based on empirical data, Commission expertise, or the actual culpability of defendants. If they were, they would be much less severe, and judges would respect them more. Instead, they are driven by drug type and quantity, which are poor proxies for culpability.

These passages from the body of the lengthy Diaz opinion reveal just some of its many flourishes:

If the Commission wants greater adherence to the Guidelines, as it should, it needs to get better at fixing broken offense guidelines.  The drug trafficking offense guideline was born broken.  Many judges will not respect it because as long as the sentences it produces are linked to the ADAA’s mandatory minimums, they will be too severe.  Indeed, as discussed further below, for almost two decades the nation’s judges have been telling the Commission to de-link the drug trafficking offense guideline from those harsh mandatory minimums and to reduce the sentencing ranges.  The Commission should listen and act.  It should use its resources, knowledge, and expertise to fashion fair sentencing ranges for drug trafficking offenses.  That process will take time.  In the meantime, because real people, families, and communities are harmed by the current ranges, it should immediately lower them by a third....

Let those who advocate for longer prison terms, and even a return to the dark days of mandatory Guidelines, go ahead and make their case.  The debate is good for the health of our federal criminal justice system.  But the suggestion that federal sentences should become more severe in the name of racial equality is preposterous.  That case has emphatically not been made, and the Commission’s repeated suggestion that it has insults the entire judiciary and demeans the Commission itself.  If it does nothing else, the Commission should take affirmative steps to remove the race issue, which it unwisely inserted into the discussion of federal sentencing policy, from the debate....

The Commission should use its resources, knowledge, and expertise to fashion fair sentencing ranges for drug trafficking offenses.  If it does, those ranges will be substantially lower than the ranges produced by the current offense guideline.  The deep, easily traceable structural flaw in the current drug trafficking offense guideline produces advisory ranges that are greater than necessary to comply with the purposes of sentencing.  We must never lose sight of the fact that real people are at the receiving end of these sentences.  Incarceration is often necessary, but the unnecessarily punitive extra months and years the drug trafficking offense guideline advises us to dish out matter: children grow up; loved ones drift away; employment opportunities fade; parents die.

Download United States v. Ysidro Diaz

January 29, 2013 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (34) | TrackBack

New Sentencing Project report on 2012 state statutory sentencing developments

I just received an e-mail promoting a notable new report just released by The Sentencing Project.  Here is the full text of the e-mail, signed by Marc Mauer, which includes a link to the report:

I am pleased to share with you a new report from The Sentencing Project, The State of Sentencing 2012: Developments in Policy and Practice, by Nicole D. Porter.  The report highlights reforms in 24 states that demonstrate a continued trend to reform sentencing policies and scale back the use of imprisonment without compromising public safety.  The report provides an overview of recent policy reforms in the areas of sentencing, probation and parole, collateral consequences, and juvenile justice.  Highlights include:

  • Mandatory minimums:  Seven states — Alabama, California, Missouri, Massachusetts, Kanas, Louisiana, and Pennsylvania — revised mandatory penalties for certain offenses,  including crack cocaine offenses and drug offense enhancements.
  • Death penalty: Connecticut abolished the death penalty, becoming the 17th state to do so.
  • Parole and probation reforms:  Seven states — Colorado, Delaware, Georgia, Hawaii, Louisiana, Missouri, and Pennsylvania — expanded the use of earned time for eligible prisoners and limited the use of incarceration for probation and parole violations.
  • Juvenile life without parole:  Three states — California, Louisiana, and Pennsylvania — authorized sentencing relief for certain individuals sentenced to juvenile life without parole.
I hope you find this publication useful in your work.  The full report, which includes a comprehensive chart on criminal justice reform legislation, details on sentencing, probation and parole, collateral consequences of conviction, juvenile justice and policy recommendations, can be found online here.  I’d encourage you to be in touch with Nicole D. Porter, Director of Advocacy, at nporter@sentencingproject.org to discuss how we can support your efforts in the area of state policy reform.

January 29, 2013 in Data on sentencing, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, January 17, 2013

"Decoupling Federal Offense Guidelines from Statutory Limits on Sentencing"

The title of this post is the title of this notable new federal sentencing article by Professor Kevin Bennardo which is now available via SSRN. Here is the abstract:

When incorporating statutorily-mandated minimum and maximum sentences into offense guideline, the United States Sentencing Commission must strike a delicate balance between promulgating guidelines that are consistent with federal law and carrying out its characteristic institutional role of advising sentencing courts of proper punishment based on empirical data and national experience.

This article recommends that, in general, when a statutory limit on sentencing deviates from what the Commission deems to be fair punishment, the Commission should incorporate the statutory limit into the offense guideline to the least extent possible. Although this approach may lead to cliffs and plateaus in the Guidelines ranges and thereby diminish relative fairness between similarly-situated offenders, this approach maximizes the imposition of actually fair sentences (as viewed by the Commission) within the confines of the statutory scheme.

Controlled substance offenses, however, are an exception. In some instances, drug offenders are relieved from the application of an otherwise-applicable mandatory minimum sentence through the operation of the so-called “safety valve” or, in some circuits, because the government failed to plead the triggering drug quantity in the indictment or prove it beyond a reasonable doubt. To achieve actual fairness for these offenders, the Commission should apply a controlled substance offense guideline that takes no account of statutory limits on sentencing.

By amending offense guidelines that incorporate mandatory minimums to more closely reflect its own research and expertise, the Commission will better achieve offense guidelines that produce Guidelines ranges that the Commission views as actually fair.

January 17, 2013 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Judiciary Committee Chair Leahy expresses interest in mandatory minumum sentencing reform

At the end of this lengthy post at The BLT, I discovered some interesting and encouraging sentencing reform news coming from a speech given yesterday by Senator Patrick Leahy.  Here is the start and end of the post:

Senate Judiciary Committee will dedicate most of its time this spring to comprehensive immigration reform, including changes for technology companies and agricultural businesses, Senator Patrick Leahy (D-Vt.), the committee's chairman, said Wednesday.

"We have to find a way through the partisan gridlock to enact meaningful change on immigration laws, and that should include a path for citizenship," Leahy said at Georgetown University Law Center this morning. "I know I’m going to hear a lot of different views on this, but I hope that in the end we can honor those who came before us from distant lands in search of freedom and opportunity."...

The committee will also focus on promoting national standards and oversight for forensic labs and practitioners, as well as fiscal issues related to the high rate of imprisonment and mandatory minimum sentences, Leahy said.

The reliance on mandatory minimum sentences has been "a great mistake," Leahy said. "Let judges act as judges and make up their own mind what should be done. The idea we protect society by one size fits all…it just does not work in the real world."

Leahy also said there are too many young people, minorities, and people from the inner cities, who are serving time where others who do the same crime get lighter penalties.  He used the example of someone from the inner city buying $100 of cocaine could spend years in prison, while a Wall Street banker would only face reprimand, and maybe spend a week of public service on Park Avenue.

January 17, 2013 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, January 15, 2013

Another perspective on Alleyne argument (predicting Harris's demise)

Experienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here), who has already provided a terrific review of last week's meeting of the US Sentencing Commission for the blog here, now comes through with this lengthy guest-post concerning what he saw at yesterday's SCOTUS oral argument over the reach of the Apprendi:

In a rather spirited exchange between the Justices and counsel, the U.S. Supreme Court heard oral argument today in Alleyne v. United States, 11-9335. (Alleyne is pronounced “AH-lane,” by the way).   The question presented was whether the Court should over-rule its decade old plurality decision in Harris v. United States, 536 U.S. 545 (2002), which held that Apprendi did not apply to facts triggering mandatory minimum penalties. In Alleyne, the defendant was convicted of violating 18 U.S.C. § 924(c), which requires a 5-year mandatory minimum sentence for possession of a firearm in connection with another felony, but a 7-year mandatory minimum if the firearm was brandished, 10 years if discharged.   Moreover, such mandatory minimum penalties are to be imposed consecutive to any guidelines sentence for the underlying felony.   A special verdict form was used in Alleyne as to whether the defendant merely possessed or brandished the firearm; the jury found only that a firearm was possessed.   However, at sentencing, the district judge found by a preponderance of the evidence that the defendant in fact brandished the firearm.  And while reluctant to be a “reverser” of the jury, imposed the 7-year mandatory minimum sentence.

Somewhat surprisingly, the Court started off with a rather rigorous investigation into stare decisis.   Justices Alito and Scalia explored what the principle was for ignoring stare decisis in this case, and pondered the effect of prior opinions of the Court on Harris. Justice Ginsburg helpfully asked whether the issue simply was the degree of persuasiveness a plurality decision has vis-à-vis a unanimous opinion.  Still Justice Alito struggled with developing a constitutional principle that would support overruling Harris. Nevertheless, it did not appear that stare decisis would be an impediment to reversing Harris.

Moving on to the core issue, the Justices struggled with what the holdings in Apprendi and McMillan (upon which Harris rested) meant in terms of increased penalty exposure.  If the ceiling (statutory maximum) is increased, all agreed that that clearly increases a defendant’s exposure. T he issue was whether that also applied to the floor (mandatory minimum).  Justice Scalia repeatedly returned to the fact that if only the floor changes, say from 5 years to 7 years, it does not change what a judge “could have” imposed, and therefore does not increase a defendant’s exposure.  So, for example, if the ranges are 5 to 10 years, a judge could just as easily impose a 7 year sentences the same as if the range were 7 to 10 years.  The government framed the issue as whether a defendant has a constitutional right to judicial leniency. i.e., to a lower sentence than the mandatory minimum.

Interestingly, while there was a focus on the statutory maximum, there was little discussion of a penalty “range,” which to this observer would have seemed to address much of the concern.  A range, of course, implies both a ceiling and a floor.  Apprendi did, after all, discuss exposure not only in terms of an increased statutory maximum penalty, but expressly held that “[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed RANGE of penalties to which a criminal defendant is exposed.” (Emphasis added).  And as we all know, Booker, in holding the Federal Sentencing Guidelines unconstitutional, was concerned about “ranges” there as well.  So, if the argument had moved away from just the ceiling and to “range,” then it would have seemed to address some of the Court’s concerns.  Interestingly, Justice Breyer, who candidly admitted in Harris that he could not logically distinguish Apprendi from its application to mandatory minimum penalties, was silent throughout much of the debate.

Finally, there was some interesting discussions concerning statistics from Justices Kagan and Sotomayor.  Those Justices inquired as to the frequency of sentences imposed at the mandatory minimum in 924(c) cases.  Presumably if judges impose sentences at the mandatory minimum the majority of the time (and Petitioner’s counsel indicated that this is the case), such a finding presumably would tend to show that judges likely would impose a lower sentence if they could (and indeed, per the record below, that appeared to be the case in Alleyne).   However, the question was not framed quite right.  The penalties at 924(c) are imposed consecutive to any guideline sentence, so unless one knew what the underlying guideline sentence was, merely looking at the final sentence would not be instructive.  Further, and more importantly, the Commission does not provide any statistics on 924(c) that would be helpful to answering this question (although Ch. 9 of its recent report to Congress on Mandatory Minimum Penalties does provide some insight). Providing such statistics would be quite helpful, and the Commission’s database appears robust enough to provide reports on the same.

In the end, it appears to this observer that Harris will be overruled. Given that Harris will have little practical effect on sentencing practice because the government already includes in the indictment the facts that trigger a mandatory minimum, it is somewhat odd (to this observer) why the Court granted cert. in Alleyne.  Was it simply an academic exercise to clean-up Harris?  Perhaps, although it could be the start of a larger effort.  The Court recently asked the government to file a response to a petition of cert. in Stroud v. United States, 12-6877 addressing the controversial holding in Watts that courts may use acquitted and uncharged conduct at sentencing.

Recent prior posts on Alleyne case:

January 15, 2013 in Blakely in the Supreme Court, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Monday, January 14, 2013

An early report on Alleyne argument over Apprendi's reach

As previewed here, today was a big day for the Sixth Amendment before the Supreme Court.  Hard-core sentencing fans have to be interested in the Alleyne case concerning the right to a jury determination of facts that trigger the application of mandatory minimum sentencing terms.  Lyle Denniston has this SCOTUSblog recap of today's argument in Alleyne, which gets started this way:

After taking an obligatory look at whether the Supreme Court should feel bound by its past precedents, the Justices on Monday moved into an issue clearly of more interest to them: what do they need to do to protect the role of juries in laying the groundwork for criminal sentences? This inquiry turned into a combative discussion of just what the Court meant in 2000 in giving jurors a much-enhanced role when their verdicts trigger the fixing of sentences — the historic decision in Apprendi v. New Jersey.

The Justices who were opposed to expanding Apprendi argued that it dealt singularly with curbing judges who decide to impose a sentence beyond the top limit set by the legislature, while the Justices who seemed ready to push Apprendi a bit further contended that it should mean that increasing a convicted individual’s potential sentence should depend upon what the jury found, not the judge.  There did not seem to be a middle ground.  The two lawyers arguing the case were just as far apart.

As long-time readers should know, I keep trying to push a distinction between offense facts and offender facts as kind of a middle-ground position on Apprendi's reach, and that idea finds expression in an amicus brief I helped put together in Alleyne (discussed here).  Sadly, based on this early account of today's argument in Alleyne, it would appear that yet another group of inside-the-beltway folks are more interested in sticking to their polarizing positions than in coming up with middle-ground solutions to important problems.

I suspect I will have more to say about Alleyne after I get a chance to read the oral argument transcript, which is now available at this link.

Recent prior posts on Alleyne case:

January 14, 2013 in Blakely in the Supreme Court, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Friday, January 11, 2013

Great weekend reading for Sixth Amendment fans

My main plans for the coming weekend is to watch a lot of (well-paid) large men running around a small field inflicting brain damage on one another while millions cheer them on while drinking lots of alcohol (aka the NFL divisional playoffs).  But I may also have to spend a little time obsessing over the Sixth Amendment and its application to mandatory minimum sentencing fact-finding because Monday brings the Supreme Court oral argument in Alleyne v. United States (basics and briefing here via SCOTUSblog).

Moreover, as Rory Little spotlights in this new SCOTUSblog post, there is also another distinct type of Sixth Amendment case on tap for the Justices on Monday.  Here is how Rory's preview gets started:

Monday is apparently “Sixth Amendment Day” at the Court.  Most eyes will be on the first case to be argued (Alleyne v. United States), in which the Court will consider whether there an Apprendi right to jury trial for mandatory minimum sentencing facts.  But don’t ignore the second case, Boyer v. Louisiana, which presents a Speedy Trial question that seems increasingly important in a world of rising appointed-counsel costs funded by decreasing government budgets.

When a criminal trial is delayed because there are no funds to pay for the indigent defendant’s counsel, does that delay count against “the state” in a Speedy Trial analysis?  We’ll see whether the Justices can stay focused on this discrete question presented – which would be an important one to answer around the nation — or whether they will take the bait (offered by both sides albeit in opposite directions) to decide whether the right to speedy trial was actually violated on the (always) unique facts of this case?  The normal course would be to answer only the question presented, and then remand for “further proceedings not inconsistent” with the Court’s opinion.  While “bad facts” on both sides in this case might tug for a broader ruling, it seems more likely that the Justices will avoid a decision on the ultimate merits – which still leaves a difficult debate on the narrower question.

In addition to the parties' briefs in both cases, there are two amicus briefs filed in Boyer and six amicus briefs filed in Alleyne.  If the NFL playoff games fail to hold my attention, I likely will pull some of these briefs up on my e-reader; I would greatly appreciate any informed (or even uninformed) recommendations as to which of all these briefs make for the best reads. 

Of course, I am partial to the Alleyne brief I help put together for the New York Council of Defense Lawyers (discussed here), in part because it presents an approach to the Sixth Amendment that does not appear in other briefs.  I suspect that, especially in all the Alleyne case, a lot of similar ground may get covered in all the usual discussion of Sixth Amendment jurisprudence; I am thus especially interested to figure out whether and how any fresh ideas about the Apprendi line of cases have been presented to the Justices in all the briefing.

Recent prior posts on Alleyne case:

January 11, 2013 in Blakely in the Supreme Court, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, January 07, 2013

California medical marijuana provider gets 10-year mandatory-minimum federal prison term

As reported in this local story, headlined "Medical marijuana: Aaron Sandusky sentenced to 10 years in federal prison," a high-profile case from federal court in California has resulted in a significant prison term today as a result of federal mandatory minimum sentencing laws.  Here are the basics:

Aaron Sandusky has been sentenced to 10 years in federal prison.  The former G3 Holistic Inc. medical marijuana dispensary president was sentenced today in U.S. District Court in Los Angeles for operating medical marijuana dispensaries in Upland, Colton and Moreno Valley.

"In this case, as the defendant was warned, the court's hands are tied," U.S. District Judge Percy Anderson said. "Whether you agree with the defendant's position or not."

Sandusky was found guilty in October of conspiracy to manufacture marijuana plants, to possess with intent to distribute marijuana plants, and to maintain a drug-involved premises; and one count of possession with intent to distribute marijuana plants, according to the U.S. Department of Justice.... 

"I want to apologize to those with me and their families who have been victimized by the federal government who has not recognized the voters of this state," Sandusky said in court.

State voters approved Proposition 215 in 1996, allowing medical marijuana in the state, while state Senate Bill 420, which details the amount of marijuana a person can possess for medical purposes, prevents cities and counties from banning marijuana dispensaries. But federal law says marijuana -- medical or otherwise -- is illegal. "I want to apologize to the families who are suffering and who have to go through this," Sandusky said.  "There are no winners here.  Not the state, not the federal government, not the patients who need medical marijuana."...

Sandusky turns 43 on Tuesday.  "It's not going to be a real happy birthday," G3 Holistic patient Christopher Kenner said.  "I hate to think this is the last time I'll see him."

Federal authorities in June arrested Sandusky and additional operators of the Inland Empire chain of marijuana stores and others associated with a warehouse, where marijuana was cultivated for the stores, on federal drug trafficking charges.  A six-count indictment returned by a federal grand jury charged three owners and operators of G3 Holistic stores. The indictment also charged three people who allegedly worked at a large grow operation in an Ontario warehouse that supplied marijuana to the three G3 stores.

I presume that Aaron Sandusky has preserved all of his potential appellate issues concerning his trial and sentencing and that he will pursue an appeal in the Ninth Circuit. Consequently, I doubt today's federal sentencing is the last chapter in his federal prosecution story.

January 7, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, January 02, 2013

"Plead Guilty or Go to Prison for Life"

The title of this post is the headline of this new commentary concerning the Chris Williams' case and authored by Jacob Sollum over at Reason.com.  The sub-headline is "The stark choice given a medical marijuana grower highlights the injustice of mandatory minimums," and here are excerpts:

Chris Williams, a Montana medical marijuana grower, faces at least five years in federal prison when he is sentenced on February 1. The penalty seems unduly severe, especially because his business openly supplied marijuana to patients who were allowed to use it under state law.

Yet five years is a cakewalk compared to the sentence Williams originally faced, which would have kept the 38-year-old father behind bars for the rest of his life. The difference is due to an extremely unusual post-conviction agreement that highlights the enormous power prosecutors wield as a result of mandatory minimum sentences so grotesquely unjust that in this case even they had to admit it....

For a while it seemed that Williams, who rejected a plea deal because he did not think he had done anything wrong and because he wanted to challenge federal interference with Montana's medical marijuana law, also was destined to die in prison. Since marijuana is prohibited for all purposes under federal law, he was not allowed even to discuss the nature of his business in front of the jury, so his conviction on the four drug charges he faced, two of which carried five-year mandatory minimums, was more or less inevitable.

Stretching Williams' sentence from mindlessly harsh to mind-bogglingly draconian, each of those marijuana counts was tied to a charge of possessing a firearm during a drug trafficking offense, based on guns at the Helena grow operation that Williams supervised and at Flor's home in Miles City, which doubled as a dispensary. Federal law prescribes a five-year mandatory minimum for the first such offense and 25 years for each subsequent offense, with the sentences to run consecutively.

Consequently, when Williams was convicted on all eight counts, he faced a mandatory minimum sentence of 80 years for the gun charges alone, even though he never handled the firearms cited in his indictment, let alone hurt anyone with them. This result, which federal prosecutors easily could have avoided by bringing different charges, was so absurdly disproportionate that U.S. Attorney Michael Cotter offered Williams a deal.

Drop your appeal, Cotter said, and we'll drop enough charges so that you might serve "as little as 10 years." No dice, said Williams, still determined to challenge the Obama administration's assault on medical marijuana providers. But when Cotter came back with a better offer, involving a five-year mandatory minimum, Williams took it, having recognized the toll his legal struggle was taking on his 16-year-old son, a freshman at Montana State University.

"I think everyone in the federal system realizes that these mandatory minimum sentences are unjust," Williams tells me during a call from the Missoula County Detention Facility. But for prosecutors they serve an important function: "They were basically leveraging this really extreme sentence against something that was so light because they wanted to force me into taking a plea deal." Nine out of 10 federal criminal cases end in guilty pleas.

The efficient transformation of defendants into prisoners cannot be the standard by which we assess our criminal justice system. If the possibility of sending someone like Chris Williams to prison for the rest of his life is so obviously unfair, why does the law allow it, let alone mandate it?

I am glad to see the Williams' case continuing to get attention and criticism, but this commentary overlooks what strikes me as one of the worst parts of the deal with federal devil that Williams was forced to accept: in the deal, Williams waived all of his appeal rights to challenge his convictions so that he would not be able to continue with his lawful and courageous challenge to the federal laws with which he was prosecuted.

Prior posts on Williams case and related prosecutions:

January 2, 2013 in Drug Offense Sentencing, Examples of "over-punishment", Mandatory minimum sentencing statutes, Pot Prohibition Issues, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (20) | TrackBack