Wednesday, November 02, 2011

State mandatory minimum requires Oregon faith-healing parents to serve long term for manslaughter

Though I am still working my way through the important new US Sentencing Commission report on mandatory minimum sentences, this local article from Oregon is a reminder that many states have notable mandatory minimum sentencing rules that apply in many notable settings.  Here are the details of this sad, yet interesting, state mandatory minimum sentencing tale:

A Clackamas County judge stunned a courtroom packed with supporters of Dale and Shannon Hickman Monday when he sentenced the couple, members of an Oregon City faith-healing church, to prison for six years and three months.

The Hickmans received the mandatory minimum prison term under Measure 11 sentencing guidelines, even though defense attorneys argued that their clients qualified for little or no prison time. Once released, they will be on post-prison supervision for three years.

"This is a sentence you have justly earned," said Presiding Judge Robert D. Herndon. He called incarceration "a modest penalty for causing the death of a vulnerable person. ... This was so preventable."

After Herndon left the courtroom, about 100 church members remained, sullen and many sobbing, as deputies handcuffed the Hickmans and led them away.

The Hickmans were convicted of second-degree manslaughter in September for failing to seek medical care for their son David, who was born two months prematurely and lived less than nine hours. An autopsy found he had staph pneumonia and underdeveloped lungs. Pediatric experts testified that the baby almost certainly would have survived if he had been taken to a hospital. The Hickmans sought no medical intervention even as the baby turned gray and struggled to breathe.

Under Oregon law in effect when the baby died in 2009, defense attorneys maintained that the Hickmans were eligible for a lesser sentence available to those who rely on spiritual treatment. The Legislature eliminated the exemption this year -- motivated by the long history of child deaths among the Followers – and the Hickmans will be the last Oregonians to attempt to benefit from the old law. Under the law in effect at the time of the crime, Herndon needed "substantial and compelling reasons" to depart from the sentencing guidelines, and he did not see any.

Had the Hickmans conceded at trial that David was sick -- but not gravely ill -- and that they relied on faith-healing rituals to cure him, they might have fared differently at sentencing. But instead of invoking a religious defense, the Hickmans said they saw no reason to call 9-1-1 or seek medical assistance because there was nothing wrong with their son, even as he grew weaker and died. "As the evidence unfolded and the witnesses testified, it became evident to me and certainly to the jury that this death just simply did not need to occur," said Herndon, noting that the jury reached a unanimous verdict in a "stunningly" short time.

Defense attorneys Mark Cogan and John Neidig urged Herndon to give the couple probation, assuring Herndon that the parents would take their children to the doctor and get training to help them determine when a child needs a doctor's care.

Shannon Hickman tearfully appealed for Herndon to not separate her from her two children, a 7-year-old daughter and an infant son. Dale Hickman, emotional but composed, asked the judge to "find in your heart mercy for my wife and above all else, our children."...

Prosecutor Mike Regan said the sentence sends a message to the church. The Followers are not fundamentally different from a black-robed pagan group that sacrifices a sick child in the dead of night, Regan told the court. In the Followers, "we have a religious group sacrificing children's lives, year after year, decade after decade," he said. "We have to do something."

November 2, 2011 in Mandatory minimum sentencing statutes, Offense Characteristics, State Sentencing Guidelines | Permalink | Comments (26) | TrackBack

Monday, October 31, 2011

The US Sentencing Commission new mega-report on mandatory minimums now available

I am pleased to see that the US Sentencing Commission has succeeded in releasing its massive new report on mandatory minimums, which has the formal (and oh-so-exciting) title "Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System."  This official press release provides the basics on this important report:

Today the United States Sentencing Commission submitted to Congress its 645-page report assessing the impact of statutory mandatory minimum penalties on federal sentencing.

Judge Patti B. Saris, chair of the Commission stated, “While there is a spectrum of views on the Commission regarding mandatory minimum penalties, the Commission unanimously believes that certain mandatory minimum penalties apply too broadly, are excessively severe, and are applied inconsistently across the country. The Commission continues to believe that a strong and effective guideline system best serves the purposes of sentencing established by the Sentencing Reform Act of 1984.”

In the report, the Commission recommends with respect to drug offenses that Congress reassess certain statutory recidivist provisions, and consider possible tailoring of the “safety valve” relief mechanism to other low-level, non-violent offenders convicted of other offenses carrying mandatory minimum penalties. It also recommends that Congress examine and reevaluate the “stacking” of mandatory minimum penalties for certain federal firearms offenses as the penalties that may result can be excessively severe and unjust, particularly in circumstances where there is no physical harm or threat of physical harm.

The Commission also addresses the overcrowding in the federal Bureau of Prisons, which is over-capacity by 37 percent. Saris noted, “The number of federal prisoners has tripled in the last 20 years. Although the Commission recognizes that mandatory minimum penalties are only one of the factors that have contributed to the increased capacity and cost of inmates in federal custody (an increase in immigration cases is another), the Commission recommends that Congress request prison impact analyses from the Commission as early as possible in the legislative process when Congress considers enacting or amending federal criminal penalties.”

The report was undertaken pursuant to a directive from Congress to examine mandatory minimum penalties, particularly in light of the Supreme Court’s 2005 decision in Booker v. United States, which rendered the federal sentencing guidelines advisory. The comprehensive report contains the most up-to-date data and findings on federal sentencing and the application of mandatory minimum penalties compiled since the Commission released its 1991 report. The Commission reviewed 73,239 cases from fiscal year 2010 as well as its data sets from previous fiscal years to conduct the data analyses in the report and support the findings and conclusions set forth.

Here are some of the report's key findings that are noted in the press release (with my emphasis added to spotlight data I found especially interesting and important):

The full 645-page(!) report is linked from this USSC webpage, and a 25-page executive summary is available at this link.  Lots and lots of posts about this report and the mass amount of data and analysis it reflects will follow through the days and weeks ahead.

October 31, 2011 in Detailed sentencing data, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (10) | TrackBack

Trick or Treat?: What will new USSC report on mandatory minimums say and advocate?

ImagesAmong the exciting activities I have planned for today, the last day of October, is to start reading the US Sentencing Commission's new report to Congress discussing mandatory minimum sentencing statutes in the federal sentencing system.  This report has been in the works for two years, and is expected to be released later today.  

According to Judge Patti Saris, the Chair of the US Sentencing Commission whom I had the pleasure to hear speak at an event in Ohio on Friday, this report is going to run more than 600 pages.  Judge Saris also indicated that the report will assert that some mandatory minimum sentencing statutes apply too broadly and are too severe.  But she also suggested that the report will not categorically assert that all mandatory minimum sentencing provisions are bad policy in all circumstances.

Remarkably, it has been more than two decades since the USSC issued a report to Congress on mandatory minimum sentencing.  Way back in August 1991, the USSC produced this important document, titled "Special Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System," which reached these important conclusions:

Despite the expectation that mandatory minimum sentences would be applied to all cases that meet the statutory criteria of eligibility, the available data suggest that this is not the case.  This lack of uniform application creates unwarranted disparity in sentencing, and compromises the potential for the guidelines sentencing system to reduce disparity....

In 35 percent of cases in which available data strongly suggest that the defendant's behavior warrants a sentence under a mandatory minimum statute, defendants plead guilty to offenses carrying non-mandatory minimum or reduced mandatory minimum provisions.  Since the charging and plea negotiation processes are neither open to public review nor generally reviewable by the courts, the honesty and truth in sentencing intended by the guidelines system is compromised....

The disparate application of mandatory minimum sentences in cases in which available data strongly suggest that a mandatory minimum is applicable appears to be related to the race of the defendant, where whites are more likely than non-whites to be sentenced below the applicable mandatory minimum; and to the circuit in which the defendant happens to be sentenced, where defendants sentenced in some circuits are more likely to be sentenced below the applicable mandatory minimums than defendants sentenced in other circuits.  This differential application on the basis of race and circuit reflects the very kind of disparity and discrimination the Sentencing Reform Act, through a system of guidelines, was designed to reduce.

Whereas the structure of the federal sentencing guidelines differentiates defendants convicted of the same offense by a variety of aggravating and mitigating factors, the consideration of which is meant to provide just punishment and proportional sentences, the structure of mandatory minimums lacks these distinguishing characteristics.  Under the guidelines, offenders classified as similar receive similar sentences; under mandatory minimums, offenders seemingly not similar nonetheless receive similar sentences. It thus appears that an unintended effect of mandatory minimums is unwarranted sentencing uniformity.

Our analyses indicate that the guidelines system established by Congress, because of its ability to accommodate the vast array of relevant offense/offender characteristics, and its self-correcting potential, is superior to the mandatory minimum approach....   Accordingly, we conclude that the most efficient and effective way for Congress to exercise its powers to direct sentencing policy is through the established process of sentencing guidelines, permitting the sophistication of the guidelines structure to work, rather than through mandatory minimums.  There is every reason to expect that by so doing, Congress can achieve the purposes of mandatory minimums while not compromising other goals to which it is simultaneously committed.

Of course, in 1991 the federal sentencing guidelines were mandatory; now they are advisory.  Nevertheless, I do not think this change in the formal legal status of the guidelines should radically change the themes and prescriptions concerning mandatory minimum statutes that the USSC set forth 20 years ago.  It will be interesting to just how the new MM report echoes or revises some of the conclusions stated the last time around.

October 31, 2011 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, October 30, 2011

Big coming week for sentencing geeks (like me)

This new week has so many events for which I have marked my calender, I am getting a bit concerned I might have a sentencing geek break-down before the week is through.  Of particular note (as I will discuss in a subsequent post), I have on lots of good authority that the US Sentencing Commission on Monday will be releasing its long-awaited (and apparently 600+ page long) report to Congress on federal mandatory minimums.  And, the next day, November 1, marks the day the new guideline revisions go into effect and the new reduced crack guideline become officially retroactive.

Meanwhile, as well detailed in this new SCOTUSblog post, a number of important criminal justice cases are to be argued before SCOTUS this coming week.  Here is the schedule via that post:

Monday, Oct 31:

Lafler v. Cooper (10-209) — claim of ineffective assistance of defense lawyer for advice to reject a plea offer and either plead guilty or go to trial (new question on remedy added by the Court)

Missouri v. Frye (10-444) — issues parallel  to those in Lafler; the cases are being argued in tandem by order of the Court

Tuesday, Nov. 1:

Rehberg v. Paulk (10-788) — scope of immunity for government official who initiates a criminal case then testifies falsely to a grand jury

Minneci v. Pollard (10-1104) — right to sue for damages for constitutional violations by private employees working for the government under contract

Wednesday, Nov. 2:

Perry v. New Hampshire (10-8974) — challenge to use of questionable eyewitness identification as criminal evidence

Gonzalez v. Thaler (10-895) — timing for appeal in federal habeas case after state conviction has become final 

October 30, 2011 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Friday, October 28, 2011

UK debate over new sentencing structures continuing

All persons interesting in structured sentencing laws ought to be keeping an eye on the interesting debates taking place in the UK now over a new set of proposed mandatory sentencing rules.  Here are links to two pieces from papers across the pond, both with telling headlined, that provide some of the details:

October 28, 2011 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, October 25, 2011

Interesting new row about mandatory sentencing terms for juves across the pond

This new piece from The Guardian reports on an interesting dispute over a new UK sentencing proposal for extending a mandatory sentencing term to certain juvenile offenders.  The piece is headlined "Ken Clarke criticises mandatory sentence for teenagers carrying knives," and here is how it starts:

Ken Clarke, the justice secretary, is heading for a fresh clash with his cabinet colleague, Theresa May and Tory backbenchers after publicly criticising moves to impose mandatory prison sentences on teenagers found with a knife.

Clarke said telling a court that it must send a 13-year-old first time offender to a secure children's home would be "bit of a leap for the British justice system".  He added that mandatory sentences were a "totally different system of sentencing juveniles".

The coalition cabinet has agreed that a mandatory minimum six-month prison sentence for adults caught carrying a knife should be added to the sentencing and punishment bill but May, the home secretary, has reportedly been pressing for it to be extended to under-18s as well.

Two London Conservative MPs, Nick de Bois and David Burrowes, backed by the London mayor, Boris Johnson, and 38 other Tory MPs, have been campaigning for the change, claiming that 40% of all knife crime is committed by teenagers.

Clarke told the Commons home affairs committee that this claim was untrue.  He said mandatory sentences in British law were an American innovation based on the assumption that judges could not be trusted to sentence on the basis of the circumstances in each case.  "We have — because of the seriousness that we attach to knife crime and we think a strong message has got to be sent to people indulging in knife crime — agreed such a mandatory sentence for adults," said Clarke.

But, he added: "This is being tabled and that is the government's proposal.  The idea that mandatory sentences for certain types of offence, should be extended to young offenders, to children, to juveniles is a bit of a leap for the British judicial system."

The justice secretary made clear that the only mandatory sentence he really approved of was the life sentence for murderers. The experience of every other mandatory sentence introduced into Britain, including "three strikes and you're out" rule that remained on the statute book, was that the judges found a way round to ensure the sentence fit the circumstances of the crime.

October 25, 2011 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, October 11, 2011

Fourth Circuit provides 100 pages of ACCA's application to indecent liberties

If you cannot get enough of appellate litigation over intricate issues in the definition of a crime of violence under the federal Armed Career Criminal Act — and, really, who can? — then you are going to adore the work of the en banc Fourth Circuit today in US v. Vann, No. 09-4298 (4th Cir. Oct. 11, 2011) (available here). This summary of the disposition and the opinions in Vann provides a small taste of the fun the case potends:

Vacated and remanded by published opinion. A per curiam opinion, in which Chief Judge Traxler and Judges Motz, King, Gregory, Agee, Davis, Keenan, Wynn, and Diaz joined, was issued on behalf of the en banc majority.  Judge King wrote a concurring opinion, in which Judges Motz, Gregory, and Davis joined.  Judge Agee wrote an opinion concurring in the judgment, concurring in the en banc majority opinion, and concurring in the opinion of Judge Keenan.  Judge Davis wrote a concurring opinion.  Judge Keenan wrote a concurring opinion, in which Chief Judge Traxler and Judges Agee, Wynn, and Diaz joined.  Judge Wilkinson wrote an opinion concurring in the judgment.  Judge Niemeyer wrote an opinion concurring in part and dissenting in part, in which Judge Shedd joined.

Got that?  As for the substance prompting all this opinion writing (totalling 100 pages), here is part of the start of the per curiam opinion from the Fourth Circuit majority:

On January 20, 2008, following a domestic altercation, Torrell Vann was arrested in possession of a handgun.  In November of that year, the grand jury returned a single-count superseding indictment charging Vann with violating 18 U.S.C. §§ 922(g)(1) and 924. The indictment also alleged that Vann had at least three previous convictions for ACCA violent felonies, rendering him eligible for the sentencing enhancement provided for in § 924(e)(1).  On December 15, 2008, Vann pleaded guilty to the offense charged, and his sentencing proceedings were scheduled for the following March.

A § 922(g) offense typically carries a statutory maximum sentence of ten years in prison. See § 924(a)(2).  If the accused has three or more previous convictions for ACCA violent felonies, however, he is subject to an enhanced minimum sentence of fifteen years with a maximum of life imprisonment.  See § 924(e)(1). Vann’s presentence investigation report (the "PSR") reflected that he had three previous convictions for violating North Carolina General Statute section 14-202.1 (the "Indecent Liberties Statute" or "Statute") that, according to the probation officer, constituted ACCA violent felony convictions and subjected Vann to the sentencing enhancement....

Vann objected to the district court’s application of the enhancement, asserting that recent Supreme Court and Fourth Circuit decisions undermined the PSR’s contention that his previous convictions were for ACCA violent felonies....

The district court rejected Vann’s characterization of his three previous indecent liberties convictions, concluding that they were for ACCA violent felonies and that he was thus subject to § 924(e)(1)’s sentencing enhancement.  As a result, on March 17, 2009, the court sentenced Vann to the statutory minimum of fifteen years in prison....  A divided panel of this Court affirmed Vann’s sentence....  Upon granting Vann’s petition for rehearing en banc, we vacated the panel opinion.

October 11, 2011 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Tuesday, October 04, 2011

Eleventh Circuit now to review en banc FSA pipeline sentencing issue

Regular readers may recall this post and this post from this past summer discussing the important Eleventh Circuit panel ruling in US v. Rojas declaring that the reduced statutory crack sentencing terms of the Fair Sentencing Act apply "to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter."  Today, the Eleventh Circuit released this new order in Rojas indicating that this issue is now going to be examined by the full Eleventh Circuit en banc.

I am disappointed (but not all that surprised) that the full Eleventh Circuit does not have better things to do than to re-review the application of the FSA's new, more fair mandatory minimum terms to a few more federal defendants.  After all, since the Rojas ruling, both the Attorney General (as detailed here) and the Third Circuit (in Dixon discussed here) have concluded that the Rojas panel got the law right.  

Moreover, and more importantly, the Rojas panel ruling does not require that district judges give lower sentences to the most aggravated crack offenses, rather it simply allows district judges to consider lower sentences for the most mitigated crack offenses.  But, apparently a majority of judges on the Eleventh Circuit are so fearful of even giving a few more federal defendants even the chance to argue at sentencing for the lower sentences that Congress has now deemed more fair that they have to turn this into a big en banc battle.  (I wonder how much in federal tax dollars are going to be wasted on the federal criminal justice debate over this narrow issue of when exactly crack sentencing is supposed to become fair as Congress has commanded.  Yeesh.)

Some prior posts on this FSA pipeline issue:

October 4, 2011 in Mandatory minimum sentencing statutes, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, September 29, 2011

Effective NY Times editorial assailing mandatory minimum sentencing laws

Today's New York Times has this effective editorial criticizing mandatory minimum sentencing provisions headlined "An Invitation to Overreach."  Here are excerpts:

The rise in mandatory minimum sentences has damaged the integrity of the justice system, reduced the role of judges in meting out punishment and increased the power of prosecutors beyond their proper roles.

A Times report this week shows how prosecutors can often compel suspects to plead guilty rather than risk going to trial by threatening to bring more serious charges that carry long mandatory prison terms.  In such cases, prosecutors essentially determine punishment in a concealed, unreviewable process — doing what judges are supposed to do in open court, subject to review.

This dynamic is another reason to repeal mandatory sentencing laws, which have proved disastrous across the country, helping fill up prisons at a ruinous cost.  These laws were conceived as a way to provide consistent, stern sentences for all offenders who commit the same crime.  But they have made the problem much worse.  They have shifted the justice system’s attention away from deciding guilt or innocence.  In giving prosecutors more leverage, these laws often result in different sentences for different offenders who have committed similar crimes.

Mandatory minimums have created other problems.  As the United States Sentencing Commission concluded, such sentences have fallen disproportionately on minorities.... These laws have helped fill prisons without increasing public safety.  In drug-related crime, a RAND study found, they are less effective than drug treatment and discretionary sentencing.

The American Bar Association, the Judicial Conference of the United States and every major organization focusing on criminal justice opposes mandatory minimum sentences. The federal and state governments should get rid of them — and the injustices they produce.

September 29, 2011 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Monday, September 26, 2011

"Sentencing Shift Gives New Leverage to Prosecutors"

26prosecute-graphic-popupThe title of this post is the headline of this lengthy front-page article appearing in today's New York Times. Here is how it gets started:

After decades of new laws to toughen sentencing for criminals, prosecutors have gained greater leverage to extract guilty pleas from defendants and reduce the number of cases that go to trial, often by using the threat of more serious charges with mandatory sentences or other harsher penalties.

Some experts say the process has become coercive in many state and federal jurisdictions, forcing defendants to weigh their options based on the relative risks of facing a judge and jury rather than simple matters of guilt or innocence. In effect, prosecutors are giving defendants more reasons to avoid having their day in court.

“We now have an incredible concentration of power in the hands of prosecutors,” said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”

One crucial, if unheralded, effect of this shift is now coming into sharper view, according to academics who study the issue. Growing prosecutorial power is a significant reason that the percentage of felony cases that go to trial has dropped sharply in many places.

Plea bargains have been common for more than a century, but lately they have begun to put the trial system out of business in some courtrooms.  By one count, fewer than one in 40 felony cases now make it to trial, according to data from nine states that have published such records since the 1970s, when the ratio was about one in 12.  The decline has been even steeper in federal district courts....

The decrease in trials has also been a consequence of underfinanced public defense lawyers who can try only a handful of their cases, as well as, prosecutors say, the rise of drug courts and other alternative resolutions.

The overloaded court system has also seen comparatively little expansion in many places, making a huge increase in plea bargains a cheap and easy way to handle a near-tripling in felony cases over the past generation.

But many researchers say the most important force in driving down the trial rate has been state and federal legislative overhauls that imposed mandatory sentences and other harsher and more certain penalties for many felonies, especially those involving guns, drugs, violent crimes and repeat offenders.

Stiffer punishments were also put in place for specific crimes, like peddling drugs near a school or wearing a mask in certain circumstances.  And legislators added reams of new felony statutes, vastly expanding the range of actions considered illegal.

These tougher penalties, by many accounts, have contributed to the nation’s steep drop in crime the past two decades.  They have also swelled the prison population to levels that lawmakers in some states say they can no longer afford, and a few have rolled back some laws.

September 26, 2011 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, September 07, 2011

More than a decade later, has Justice Breyer finally accepted Apprendi?

The question in the title of this post is prompted by the latest great Sidebar piece in the New York Times by Adam Liptak.  The piece is headlined "When Perpetual Dissent Removes the Blindfold," and this portion of the piece prompts the question I pose here:

Once an issue is decided, it is the law, and a justice on the losing side the first time around is obligated to follow the decision except in extraordinary circumstances. Yet the opposite approach is common. Whether as a matter of principle, pique or personal privilege, justices often assume that an initial dissent permits them to stick to their positions indefinitely, or at least for a long time.

In 2002 [in Harris], for instance, Justice Stephen G. Breyer acknowledged that the logic of a decision from which he had dissented two years before, Apprendi v. New Jersey, required juries, not judges, to determine the facts supporting some mandatory sentences. But, Justice Breyer wrote, “I cannot yet accept” the earlier decision.

By last year, Justice Breyer’s position seemed to be softening.  “Well, at some point I guess I have to accept Apprendi, because it’s the law and has been for some time,” he said at an argument [in O'Brien].

On Sept. 26, the justices will decide which of the thousands of appeals that have piled up over the summer are worth their time. Among them is yet another case on the issue Justice Breyer was discussing.

It involves Jennifer Lynn Krieger, who pleaded guilty to giving a pain-medicine skin patch to a friend. The friend, Jennifer Ann Curry of West Frankfort, Ill., died after chewing the patch and taking an assortment of other drugs. The average sentence for a first-time offender who admits to distributing drugs like the one in the patch is seven months. The mandatory minimum sentence when “death results,” though, is 20 years.

Ms. Krieger was not charged with causing her friend’s death. She denied doing so, and no jury ever addressed that question. But Judge J. Phil Gilbert of the Federal District Court in Benton, Ill., looked at the evidence on this point in connection with sentencing Ms. Krieger and found it more likely than not that Ms. Curry’s death had been caused by the patch.

Judge Gilbert went on to say that he would have ruled differently had the government been required to prove beyond a reasonable doubt that the patch had caused Ms. Curry’s death. Reasonable doubt is, of course, the standard that juries are instructed to use in criminal trials.

Judge Gilbert did not seem happy about where all of this left him. He said he was required to impose the 20-year sentence even though it was “unduly harsh.”  

“One cannot escape the conclusion that Krieger, while convicted of distribution” of drugs, he wrote, “is being sentenced for homicide.”  

An appeals court upheld the decision even as it noted that the law in this area hangs by a “precariously thin” thread, partly because “Justice Breyer’s dedication to his position” in the 2002 case “may be waning.”

I have previously noted the remarkable Kreiger case in this post, and I would not be at all surprised if the Supreme Court takes up the case.  And yet, as they did last year in the O'Brien case, the Justices could (and very well might) effectively dodge direct consideration of Apprendi and Harris and Blakely constitutional issues by ruling for the defendant on statutory interpretation grounds.

Related posts:

September 7, 2011 in Blakely Commentary and News, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

Wednesday, August 24, 2011

Seventh Circuit judges explain their latest views on FSA pipeline cases

Regular readers know that district court and circuit courts have been struggling through (and splitting) on whether the new crack mandatory minimum sentencing provisions of the Fair Sentencing Act apply in cases involved offenses pre-dating the new law but not yet sentenced.  The Seventh Circuit was the first, and remains the only, circuit to rule expressly that the old harsher 100-1 mandatories still apply to these pipeline cases.  Today, though a set of opinions in US v. Holcomb, No. 11-1558 (7th Cir. Aug. 24, 2011) (available here), a number of Seventh Circuit judges explain at length their latest thinking on this issue in opinion that accompany an order refusing to reconsider this issue en banc.

There is a lot of interest in these opinion for those like me who have been following this debate closely.  Here are a few snippets, first from the end of Judge Easterbrook's 16-page opinion:

If the President wants to apply the lower min imum and maximum penalt ies to all cases, pending and closed, he has only to issue a general commutation. The pardon power permits the President to achieve retroactive lenience if he is willing to pay the political price. By contrast, the judiciary must implement compromises faithfully, even when most judge s wi sh that the political decision had been different. I have therefore voted not to hear these appeals en banc.

Now from the second paragraph of Judge Williams' 20-page opinion:

Our circuit should have heard this case en banc.  Three other circuits have ruled that judges no longer must impose unfair sentences after the Fair Sentencing Act.  This issue affects pending cases and many c ases to come in light of the five-year statute of limitations on drug prosecutions. There were equal votes to grant and deny rehearing en banc.  So our circuit’s law stands, and it is wrong.

Some prior posts on this FSA pipeline issue: 

August 24, 2011 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New USSC crack guidelines and report | Permalink | Comments (0) | TrackBack

Wednesday, August 17, 2011

En banc Fourth Circuit (by 8-5 vote) changes view on prior triggering enhanced drug mandatory minimum

The Fourth Circuit today handed down a big en banc sentencing decision in US v. Simmons, No. 08-4475 (4th Cir. Aug. 17, 2011) (available here). The majority opinion begins this way:

After Jason Simmons pled guilty to federal drug trafficking, the district court held that his prior state conviction for marijuana possession, for which he faced no possibility of imprisonment, was for an offense "punishable by imprisonment for more than one year," triggering a sentencing enhancement under the Controlled Substances Act.  This enhancement doubled Simmons’s minimum sentence. We affirmed in an unpublished opinion.  See United States v. Simmons, 340 F. App’x 141 (4th Cir. 2009).  The Supreme Court vacated that judgment and remanded the case to us for "further consideration in light of Carachuri-Rosendo v. Holder," 130 S. Ct. 2577 (2010).  A panel of this court then held that Carachuri did not require any change in our prior holding.  See United States v. Simmons, 635 F.3d 140 (4th Cir. 2011).  We voted to rehear the case en banc, and for the reasons that follow, we now vacate Simmons’s sentence and remand for further proceedings consistent with this opinion.

I am not sure how many defendant's sentences could be impacted by this Simmons ruling, but I am sure that it provides yet another example of how messy federal sentencing law is when it comes to the legal treatment/impact of prior state convictions.

August 17, 2011 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Tuesday, August 09, 2011

Third Circuit (joining First and Eleventh Circuits) applies FSA lower mandatory minimum terms to pipeline cases

Via its opinion today in US v. Dixon, No. 10-4300 (3d Cir. Aug. 9, 2011) (available here), the Third Circuit has joined two other circuits in declaring that the new mandatory minimum sentencing provisions of the Fair Sentencing Act apply to all defendants who were not yet sentenced at the time of the Act's enactment.  Here is how the opinion in Dixon opinion starts and ends:

The question presented in this appeal is whether the more favorable mandatory minimum prison sentences imposed by the Fair Sentencing Act of 2010 (the “FSA” or the “Act”) apply retroactively to defendants, like Kenneth Dixon, who committed their crimes before the Act became law, but who were sentenced afterwards.  We hold that the FSA does apply in this instance.  The language of the Act reveals Congress‟s intent that courts no longer be forced to impose mandatory minimums sentences that are both indefensible and discriminatory.  Therefore, we will vacate the judgment of the District Court and remand for resentencing....

We hold that the FSA requires application of the new mandatory minimum sentencing provisions to all defendants sentenced on or after August 3, 2010, regardless of when the offense conduct occurred.  “[T]he terms of the law as a whole,” Great N. Ry., 208 U.S. at 465, namely the Act's grant of emergency authority to the Sentencing Commission and the desire to achieve “consistency” through “conforming” amendments, in conjunction with the directive in the Sentencing Reform Act of 1984 to apply the Guidelines in effect on the day of sentencing, lead to the inescapable conclusion that Congress intended to apply the FSA to Dixon.  This interpretation of the Act comports with its stated purpose to restore fairness to federal cocaine sentencing.  To conclude otherwise would frustrate this goal and set “the legislative mind . . . at naught.” Id.  Accordingly, we will vacate the judgment of the District Court and remand so that Dixon may be sentenced in accordance with the terms of the FSA.

Some prior posts on this FSA pipeline issue:

August 9, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Monday, July 25, 2011

Fascinating split Ninth Circuit opinion holds federal courts must respect modified state sentence

The majority opinion in a fascinating federal sentencing ruling from the Ninth Circuit today in US v. Yepez, No. 09-50271 (9th Cir. July 25, 2011) (available here), begins this way:

“[C]omity between state and federal courts . . . has been recognized as a bulwark of the federal system.” Allen v. McCurry, 449 U.S. 90, 96 (1980).  California Penal Code § 1203.3 permits state judges who are supervising individuals placed on state probation to terminate retroactively the terms of probation to which they had previously sentenced those defendants.  Each of the defendants in these consolidated appeals was serving such a probationary sentence when he committed and pleaded guilty to the charge of smuggling methamphetamine into the United States.  Before sentencing on the federal charge, however, each defendant obtained a modification order retroactively terminating his state-court probationary sentence as of the day before he committed his federal crime. Each argued to the state judge supervising him that failure to terminate the state probationary term would substantially increase his federal sentencing exposure by rendering him ineligible for safety-valve relief from the otherwise applicable ten-year statutory mandatory minimum. Though each federal district court judge observed that the mandatory minimum sentence was grossly excessive, the judge in Acosta-Montes’s case deferred to the state court’s nunc pro tunc termination of probation while the judge in Yepez’s case did not.  We must determine whether, given the California state courts’ wide latitude to modify ongoing probationary terms under California state law, the federal district courts in calculating criminal history points for purposes of safety valve eligibility must credit state orders terminating probationary sentences. We concluded that they must.

A dissent by a district judge sitting by designation makes these points (among others):

I would hold that United States v. Alba-Flores, 577 F.3d 1104 (9th Cir. 2009), cert. denied, 130 S. Ct. 3344 (2010), controls here in both Yepez and Acosta-Montes.  The Alba-Flores panel held that, because the defendant was serving a sentence of probation of more than one year at the time he committed his federal offense, he was properly assigned two criminal history points pursuant to U.S.S.G. § 4A1.1(d) and was disqualified from obtaining safety valve relief from the mandatory minimum sentence.  577 F.3d at 1111.  The Court reached that holding by concluding that the concrete fact that the defendant was serving a sentence of probation of more than one year at the time of his federal offense was not altered by a state court’s subsequent nunc pro tunc order shortening his term of probation to less than one year....

Nor do I find persuasive the majority’s reliance on principles of comity and federalism. The conduct in these cases by trial counsel for Yepez and Acosta-Montes reeks of the “same odor of gaming the federal sentencing system” that Judge Fernandez noted in Alba-Flores. 577 F.3d at 1111....

The troubling effect of the majority’s holding is that, where convicted federal defendants are facing imposition of federal statutory mandatory minimum sentences in upcoming sentencing proceedings in federal court, it is a state court that will decide whether imposing that mandatory minimum is appropriate.

It will be interested to see if the feds seek en banc or even cert review of this ruling.

July 25, 2011 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Monday, July 18, 2011

A (justifiably) sharp reaction to AG Holder's new position on FSA crack pipeline cases

As set out in this post from Friday, I was very pleased to learn that Attorney General Eric Holder had sent a two-page memo to all federal prosecutors explaining that he now, finally, believed the FSA's new statutory sentencing terms should apply to all defendants sentenced after the effective date of the FSA. I also expressed my disappointment that the Justice Department argued a contrary (and, in my view, deeply misguided) position in courts around the nation for nearly a year.  I thereafter received a sharp email from Dan Stiller, a Wisconsin federal public defender, which he has allowed me to reprint here in full:

The celebration of the Holder memo announcing the AG's flip-flop is justified but, thus far, short-sighted. The position taken in the memo is curative but only to a point.   For 11 months now, AUSAs from coast-to-coast have, at the AG's command, stood before federal courts, arguing an arcane constitutional provision as a means of narrowing the FSA's reach.  As a result, hundreds of defendants over those 11 months have been sentenced to no-longer applicable mandatory minimums.  

Worse, the AG's position over those 11 months has resulted in law -- bad law -- being made and the AG's change-of-heart doesn't (and shouldn't) change the recent jurisprudence.  Here in the Seventh Circuit, the court's stated reason for declining to apply the FSA to pre-enactment conduct being sentenced post-enactment was not "because such is the Government's position."   Instead, the Seventh Circuit, acting upon the Government's now-abandoned suggestion, concluded that the savings clause precludes the FSA's application to pre-enactment conduct.  The AG's flip-flop can't, to borrow Judge Walton's phrase from the Clemens trial, unring the relevant bell.

So while we celebrate the Holder memo, I fear the plight of my 170-gram pre-enactment client who appears for sentencing on Wednesday before a district court within the Seventh Circuit.  While I will be waiving the Holder memo in the direction of the bench, I fear that the judge will waive the Seventh Circuit's decision in Fisher back at me.  If so, my client will be sentenced to a defunct mandatory minimum that is nearly double the low-end of his post-enactment guideline range.  So forgive me if my celebration of the Holder memo is muted.

Some prior posts on this FSA pipeline issue:

July 18, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

Wednesday, July 06, 2011

Eleventh Circuit panel re-issues (updated) opinion finding FSA lower crack mandatories apply all sentenced after FSA

Regular readers may recall this post a few weeks ago about the important Eleventh Circuit panel ruling in US v. Rojas late last month declaring that the reduced statutory crack sentencing terms of the Fair Sentencing Act apply "to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter."  Today, the Eleventh Circuit released a new version of the Rojas opinion, available here, which now starts this way:

We sua sponte modify our previous opinion in this appeal to reflect recent developments in the law of the First and Seventh Circuits. See United States v. Fisher, 635 F.3d 336, 340 (7th Cir. 2011); United States v. Douglas, No. 10-2341, 2011 WL 2120163 (1st Cir. May 31, 2011).

The issue in this appeal is whether the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 2372 (2010), applies to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter.  We conclude that it does.

Here is what appears to be a key new paragraph from the new Rojas opinion:

We do not disagree with our sister circuits in one major sense — absent further legislative action directing otherwise, the general savings statute prevents a defendant who was sentenced prior to the enactment of the FSA from benefitting from retroactive application.  Further, we share in the well-reasoned view of the First Circuit that Congress intended for the FSA to apply immediately.  See Douglas, 2011 WL 2120163, at *4 (“It seems unrealistic to suppose that Congress strongly desired to put 18:1 guidelines in effect by November 1 even for crimes committed before the FSA but balked at giving the same defendants the benefit of the newly enacted 18:1 mandatory minimums.”).

Some posts on this FSA pipeline issue:

July 6, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Friday, June 24, 2011

Eleventh Circuit panel rules FSA's lower crack terms apply to defendants sentenced after enactment

Big ruling on crack sentencing today from the Eleventh Circuit on an issue that has divided district courts and is starting to see numerous circuit courts weigh in.  Here is how the opinion in US v. Rojas, No. 10-14662 (11th Cir. June 24, 2011) (available here).

The issue in this appeal is whether the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat. 2372 (2010), applies to defendants who committed crack cocaine offenses before August 3, 2010, the date of its enactment, but who are sentenced thereafter.  We conclude that it does.

In May 2010, Carmelina Vera Rojas pleaded guilty to one count of conspiring to possess with the intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and two counts of distributing 5 grams or more of cocaine base, in violation of § 841(a)(1).  Her sentencing was scheduled for August 3, 2010, which as it so happened, was the date on which President Obama signed the FSA into law.  The district court granted the parties a continuance to determine whether Vera Rojas should be sentenced under the FSA.  After considering the parties’ arguments, the district court concluded that the FSA should not apply to Vera Rojas’s offenses; in September 2010, the court sentenced Vera Rojas to ten years’ imprisonment.

On appeal, Vera Rojas argues that the district court erred in refusing to apply the FSA to her sentence.  Because she had not yet been sentenced when the FSA was enacted, Vera Rojas believes that she should benefit from the FSA’s provision raising the quantity of crack cocaine required to trigger a ten-year mandatory minimum sentence.  Further, Vera Rojas contends that the FSA falls within recognized exceptions to the general savings statute, 1 U.S.C. § 109.  Relying in large part on the general savings statute, the government contends that Congress’s omission of an express retroactivity provision requires that the FSA be applied only to criminal conduct occurring after its August 3, 2010, enactment.  We conclude that the FSA applies to defendants like Vera Rojas who had not yet been sentenced by the date of the FSA’s enactment.  The interest in honoring clear Congressional intent, as well as principles of fairness, uniformity, and administrability, necessitate our conclusion.  Accordingly, we reverse and remand to the district court for re-sentencing.

Some posts on this FSA pipeline issue:

June 24, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (10) | TrackBack

Wednesday, June 22, 2011

Judge Davis laments drug war's damage and costs in concurrence requiring LWOP for druggie

A couple of helpful readers altered me to a notable concurring opinion authored by Judge Davis of the Fourth Circuit in US v. Gregg, No.10-4198 (4th Cir. July 17, 2011) (available here). Here are snippets from this opinion, which merits a full read:

The distinguished district judge was aghast that the now forty-year-old Tony Gregg would spend the rest of his life in federal prison for selling small amounts of crack cocaine over a period of several weeks out of a hotel room in a run-down section of Richmond...

[P]rior to trial, Gregg was offered a plea agreement for a twenty-year sentence; when he rejected the government’s offer, the government went all out for the life sentence found to be unjust by the district court. Of the government’s four non-law-enforcement witnesses at the one-day trial below, all four were women who were themselves, like Gregg, users and sellers of crack cocaine and heroin who worked with Gregg to sell crack cocaine.

Understandably, perhaps, to many, Gregg is not a sympathetic figure; they will think: he got what he deserved. To many others, perhaps, matters are not so clear. Indeed, many would say that Tony Gregg seems to be one more of the drug war’s “expendables.” See Nora V. Demleitner, “Collateral Damage”: No Re-Entry for Drug Offenders, 47 Vill. L. Rev. 1027, 1050 (2002).

This case presents familiar facts seen in courts across the country: a defendant addicted to narcotics selling narcotics in order to support his habit.  Unfortunately for Gregg and countless other poorly-educated, drug-dependant offenders, current drug prosecution and sentencing policy mandates that he spend the rest of his life in prison....

The mass incarceration of drug offenders persists into the second decade of the twenty-first century despite the fact that research consistently demonstrates that the current approach to combating illegal drug use and drug trafficking is a failure.... Even the U.S. drug czar, a position created by the Anti-Drug Abuse Act of 1988, admits the war on drugs is failing, stating that after 40 years and $1 trillion, “it has not been successful ... the concern about drugs and drug problems is, if anything, magnified, intensified.” Martha Mendoza, After 40 Years and $1 Trillion, Drug Use Is Rampant and Violence Pervasive, Associated Press, May 13, 2010.

I share the district judge’s dismay over the legallymandated sentence he must impose in this case. While the controlling legal principles require us to order the reimposition of a sentence of life without parole in this case, the time has long passed when policymakers should come to acknowledge the nation’s failed drug policy and to act on that acknowledgement.

As a nation, we are smart enough to do better.

June 22, 2011 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

Saturday, June 11, 2011

Are severe mandatory minimums for certain gun crimes especially problematic after Heller?

The question in the title of this post is inspired by this Washington Times commentary from FAMM president Julie Stewart headlined " Second Amendment injustice Mandatory minimums for self-defense must end."  Here are excerpts:

In June 2008, the U.S. Supreme Court ruled that the Second Amendment to the Constitution protects an individual’s right to possess a firearm “and to use that arm for traditionally lawful purposes, such as self-defense within the home.”...   This [ruling] must ring awfully hollow to Orville Lee Wollard who, two years ago tomorrow was sentenced to two decades in a Florida prison for protecting his family with a firearm.

On a spring morning in 2008, Wollard got a panicked call from his wife.  The teenage boyfriend who had been beating up his 15-year old daughter was back at their house causing trouble.  Wollard rushed home and found the boy on the porch and his daughter with a black eye.  Wollard told the boy to leave, but instead, the boy attacked him, ripping out stitches from Wollard’s recent surgery, and then ran off with Wollard’s daughter.  When the two returned several hours later, the boyfriend began shoving Orville’s daughter around the Wollards’ home.  Wollard’s wife and eldest daughter screamed for him to do something. Wollard was frightened for his daughter’s and his family’s safety.

He grabbed his legally registered pistol and confronted the boy, again asking him to leave.  The boy stopped assaulting Wollard’s daughter.  He smiled, punched a hole in the wall, and began moving toward Wollard. Wollard, who had had firearms training as a former member of the auxiliary police force, aimed a bullet into the wall next to the boyfriend to scare him. No one was hurt, and the boy finally left.  That is where this story should have ended, but it didn’t. 

Several weeks later, the abusive boy called the police to report Wollard for aggravated assault, and Wollard was arrested.  Orville Wollard did not think he had committed a crime by protecting his family. He rejected a plea deal that would have given him probation and a felony record and instead took his case to court.  Prosecutors charged Wollard with various crimes, including shooting into a dwelling (his own house), child abuse (because the boy was under 18) and aggravated assault with a weapon.  A jury convicted Wollard of possessing and discharging a firearm, which triggered Florida’s mandatory minimum sentence for aggravated assault with a weapon.  Wollard was sentenced to the mandatory prison term of 20 years without parole.

At sentencing, the judge said, “This [sentence] is obviously excessive … if it weren’t for the mandatory minimum … I would use my discretion and impose some separate sentence, having taken into consideration the circumstances of the event.”  For his part, Wollard told the court, “I’m amazed. I’m stunned. I have spent my life pursuing education [and] helped the community. [T]hen one day this person breaks into my house … he continues to do this, he assaults my daughter, he threatens me, I protect myself.  [N]o one is injured in this whole thing, and I’m going to prison. … And again, with all respect to [the court], I would expect this from the former Soviet Union, not the United States.”

Wollard is right.... To be clear, a jury found Wollard guilty.  Jurors apparently did not believe he acted in self-defense..... Whether this jury reached the correct conclusion is open to debate.  Whether prosecutors should have charged a crime that carried such a harsh mandatory minimum sentence bears scrutiny.

What is beyond debate is that when judges are prevented from applying sentences that are appropriate to the unique circumstances of each case, injustice is inevitable.  And when the constitutional right to bear arms is at stake, violations of the bedrock tenet of American justice -- that the punishment should fit the crime and the offender -- are all the more intolerable.

June 11, 2011 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Second Amendment issues | Permalink | Comments (19) | TrackBack

Thursday, June 09, 2011

Justice Scalia advocates radical(?) and justified(?) judicial activism to deal with vague ACCA provision

There are many interest elements to the Supreme Court's work today on the Armed Career Criminal Act in Sykes (opinion here).  But, as is often the case, the most notable and quotable part of this statutory sentencing ruling comes from Justice Scalia.  In particular, consider how he starts and ends his Sykes dissent:

As the Court's opinion acknowledges, this case is “another in a series,” ante, at 1. More specifically, it is an attempt to clarify, for the fourth time since 2007, what distinguishes “violent felonies” under the residual clause of the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e)(2)(B)(ii), from other crimes. See James v. United States, 550 U. S. 192 (2007); Begay v. United States, 553 U. S. 137 (2008); Chambers v. United States, 555 U. S. 122 (2009). We try to include an ACCA residual-clause case in about every second or third volume of the United States Reports.

As was perhaps predictable, instead of producing a clarification of the Delphic residual clause, today’s opinion produces a fourth ad hoc judgment that will sow further confusion. Insanity, it has been said, is doing the same thing over and over again, but expecting different results. Four times is enough. We should admit that ACCA’s residual provision is a drafting failure and declare it void for vagueness. See Kolender v. Lawson, 461 U. S. 352, 357 (1983)....

We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular.  It should be no surprise that as the volume increases, so do the number of imprecise laws.  And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nittygritty.  In the field of criminal law, at least, it is time to call a halt.  I do not think it would be a radical step — indeed, I think it would be highly responsible — to limit ACCA to the named violent crimes.  Congress can quickly add what it wishes.  Because the majority prefers to let vagueness reign, I respectfully dissent.

As the title to this post suggests, I do think it would be a pretty "radical step" to simply lop off the residual clause of ACCA because the courts are struggling to give it clear content.  By the same token, however, I do think such a form of judicial activism would be justifiable for many of the reasons Justice Scalia suggests.  I wonder if readers have the same reaction to both ACCA and Justice Scalia's proposed statutory deletion due to its vagueness.

June 9, 2011 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Who Sentences? | Permalink | Comments (3) | TrackBack

Sunday, May 15, 2011

Obama Administration proposing mandatory minimum for harmful hackers

A helpful reader altered me to this Wired story, headlined "White House Wants Mandatory Three-Year Sentence for Critical-Infrastructure Hackers."  Here are the details:

Hackers who breach and cause substantial harm to critical infrastructure systems would face a mandatory minimum three-year prison sentence if the White House gets its way.

The Obama administration is requesting the mandatory prison sentence in a legislative proposal it submitted to Congress on Thursday, which outlines a long but vague list of cybersecurity provisions the White House would like included in upcoming bills.  The list includes a number of changes to laws governing hacking (.pdf), as well as laws authorizing the federal government to assist private companies in securing their computer networks when asked to mitigate threats....

Of all the items on the White House cybersecurity wish list, the provisions dealing with criminal penalties are the easiest for lawmakers to grant.  The criminal penalty for hacking into critical infrastructure is designed to emphasize the national security threat of such intrusions.  According to the proposal, the three-year sentence the White House is seeking could not be served concurrently with sentences for other violations a suspect might receive, nor could the court use the three-year mandatory sentence to reduce a suspect’s other sentences as compensation.

The administration also wants lawmakers to extend the Racketeering-Influenced and Corrupt Organizations Act, or RICO, to cover felony computer crimes. RICO has traditionally been used to prosecute the mob and other organized crime groups but does not presently cover computer crime.

So while one of President Obama's would-be 2012 challengers is talking about getting smarter on crime and another is urging withdrawal from the war on drug, the President is talking up new statutory mandatory minimum sentencing provisions.  Interesting sentencing times.  

May 15, 2011 in Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, April 29, 2011

First Circuit thoughtfully talks through inapplicability of new FSA minimums on appeal

The First Circuit has a thoughtful discussion of its view that the new mandatory minimums of the Fair Sentencing Act are inapplicable to cases sentenced before the FSA became law and now on direct appeal. The ruling in US v. Goncalves, No. 10-1367 (1st Cir. April 29, 2011) (available here), includes these passages (with indicated emphasis in the original):

There is assuredly a policy reason favoring Goncalves' requested result: Congress did think that the superseded law was too harsh, so that it will be too harsh for Goncalves just as much as for those who committed the same offense after the FSA went into effect. Indeed, Goncalves suggests that the discrepancy is itself unconstitutional under equal protection principles; but discrepancies among persons who committed similar crimes are inescapable whenever Congress raises or lowers the penalties for an offense. Most often, the dividing line is the date of the crime....

In legal terms, the FSA is clearly inapplicable to this case; in human terms, the result is much less attractive but that is because the savings statute treats all such penalty reductions generically, and Congress did not expressly make the FSA an exception here.  It could easily have done so; indeed, it remains free to do so now.  More broadly, it could sensibly amend section 109 so that reductions in penalties for a pre-existing crime presumptively applied upon the enactment (or effective date) of the statute to anyone not yet sentenced or otherwise still on direct appeal.

Among other important points, the opinion includes this important footnote concerning what the panel describes as a "distinct" FSA pipeline issue:

At least one district court has held that provisions of the FSA, coupled with later amendments by the Sentencing Commission, do make the FSA's adjustments -- including a lessening of mandatory minimums -- applicable to defendants sentenced after the amendments became effective.  United States v. Douglas, 746 F. Supp. 2d 220 (D. Me. 2010) (now pending in this circuit).  Nothing in this decision is intended to resolve the distinct issues in that appeal.

April 29, 2011 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Tuesday, April 26, 2011

Justice Department, six months later, responds to Senators' inquiry about handling FSA pipeline cases

Thanks to a very helpful reader, I have gotten a copy (and provide for downloading below) of a response from the Justice Department to the letter, dated November 17, 2010, from Senator Patrick Leahy and Senator Dick Durbin to Attorney General Eric Holder (blogged here) which urged the Justice Department to "apply [the Fair Sentencing Act's] modified mandatory minimums to all defendants who have not yet been sentenced, including those whose conduct predates the legislation's enactment."  

The response says little more than what the DOJ lawyers have been saying in courts around the country, namely that the Fair Sentencing Act's silence about implementation dates means that the general Savings Statute entails that only conduct after the effective date of the FSA gets the benefit of the new mandatory minimums.  Nevertheless, the letter is an interesting read, especially because it includes as attachments the internal memos sent from Main Justice to all prosecutors about how they should respond to the enactment of the FSA in August 2010 and to the promulgation of revised crack guidelines in November 2011.

Download FSA_Holder_letter_response_042511

Some posts on this FSA issue:

April 26, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (9) | TrackBack

Monday, April 25, 2011

Yet another ACCA case before SCOTUS this morning

The second case being argued before the Supreme Court this morning is McNeill v. United States, which is yet another case dealing with the proper application for the federal Armed Career Criminal Act.  This SCOTUSblog page (where the briefs can be found) provides this description of the case:

Issue: Whether the plain meaning of the phrase “is prescribed by law,” which the Armed Career Criminal Act uses to define a predicate “serious drug offense,” requires a federal sentencing court to look to the maximum penalty prescribed by current state law for a drug offense at the time of the instant federal offense, regardless of whether the state has made that current sentencing law retroactive.

Plain English Issue: A federal law enhances sentences for certain defendants who have been previously convicted of three or more “serious drug offense[s],” which the statute defines as a drug offense with a maximum sentence of ten or more years. Does the statute require courts to consider the maximum sentence that was on the books when the crime was committed, or at the time of the present sentencing hearing?

UPDATE:  The oral argument trancript in McNeill is now available at this link.  A quick skim reveals lots of questions for the defense attorney and not much asked of the Assistant SG.  It is often not a good sign when one gets a more active bench than one's adversary, but I rarely am inclined to make firm predictions in ACCA cases.

April 25, 2011 in Mandatory minimum sentencing statutes, Offender Characteristics | Permalink | Comments (0) | TrackBack

NY Times editorial about crack sentence debates after FSA

This morning's New York Times includes this editorial concerning federal crack sentencing headlined "Multiple Inequities."  Here are excerpts:

Congress moderated, but unfortunately didn’t eliminate, that disparity last year by passing the Fair Sentencing Act of 2010, reducing the ratio to 18 to 1.  For anyone, that is, who committed a crack offense after the law went into effect last August.  For those who committed crack-related crimes before then but have yet to be sentenced, it doesn’t. They are subject to the old mandatory minimum sentences — 5 years for 5 grams, 10 years for 50 grams.

As Adam Liptak reported in The Times, federal judges have expressed outrage about being forced to impose the harsher treatment with no discretion.  While courts decide if the new law can be applied retroactively, the Justice Department has the discretion to do something now, building on a policy Attorney General Eric Holder Jr. began last May.

He called for the “reasoned exercise of prosecutorial discretion,” authorizing a tough but flexible approach.  He asked prosecutors to take into account the kind of gross unfairness that results from applying the Fair Sentencing Act to someone who committed a crack offense in August 2010 but not to someone who did so the month before.

By statute, judges must give the mandatory minimum sentences to offenders subject to the old law.  Even under the old law, however, prosecutors have considerable discretion. Through plea bargaining, they can also ask for sentences of five years rather than 10.  If they decide not to prosecute in federal court, they can let a state prosecute with more flexibility in sentencing.

April 25, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, April 20, 2011

Terrific new research from FAMM about enactment of federal mandatory minimums

The folks at FAMM have put together a terrific (and brief) report on when mandatory minimums have been created or expanded by Congress since 1987.  The report is at this link, and this post at the FAMM blog SentencingSpeak reports on these highlights:

We looked at all the federal mandatory minimum sentencing laws created between 1987 and 2010 and asked ourselves some simple questions:

When did Congress create this mandatory sentence?  When did Congress increase it?  When did Congress expand or rewrite the law so that more people were subjected to the mandatory sentence?

The answer is: election years, election years, election years.

The conclusions we drew from our data compilation:

(1) Congress is significantly more likely to create or expand a mandatory minimum sentence in an election year than in a non-election year.  Since 1987, there has been only one election year (2010) in which Congress did not create or expand any mandatory minimum sentences.

(2) Republican Congresses have created or expanded almost twice as many mandatory minimum sentences (131) as Democratic Congresses (68) since 1987.

(3) Including all presidents, more mandatory minimums have been created or expanded under Republican presidents (111) than Democratic ones (88) since 1987. However, President William J. Clinton presided over the creation or expansion of more mandatory minimums (87) than President George W. Bush (77).

(4) The creation and expansion of mandatory minimums corresponds to periods in which certain crimes received notable or extensive media attention and created fear or panic among Congress and the general public.  For example, mandatory minimum drug sentences were created in the late 1980s and almost solely justified by now-debunked fears surrounding abuse of crack cocaine.  Many mandatory minimums for child pornography and sex offenses were created in 2003 (when the abductions, rapes, and murders of several young female victims dominated headlines for months) and 2006 (the 25th anniversary of the abduction and death of Adam Walsh, who was the inspiration for the Adam Walsh Child Protection and Safety Act, a law that was vigorously lobbied for by the victim’s father and host of the TV show America’s Most Wanted and by victims’ rights groups nationwide).

April 20, 2011 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, April 06, 2011

The latest, greatest district court opinion applying FSA to pipeline cases

A couple of veru helpful readers have alerted me to a notable new district court opinion concerning the application of the Fair Sentencing Act to pipeline cases.  Here is one report I received via e-mail concerning the opinion:

Although there are a litany of FSA retroactivity cases being decided on a weekly bases..., I thought the attached opinion was worthy of highlighting to you.  The case is US v. Watts, 09-cr-30030-MAP (D. Mass. April 5, 2011) [available for download below].

It's a 50 page Memorandum from Judge Ponsor that describes the history of crack sentencing and then explains in a thorough analysis why the FSA must be applied to defendants who are pending sentencing and why the General Savings Statute is no bar to that conclusion.  Consistent with your amicus letter [discussed here], it also distinguishes between individuals who have already been sentenced vs. defendants pending sentence.

There are a lot of choice passages, [including]:

  • "A review of the background of [the General Savings Statute], and the authorities construing it, reveals that it is simply not the straitjacket some courts have supposed it to be." (slip op. at 33-34).
  • "An examination of the muddied jurisprudential history of the General Saving Statute reveals the impertinence of the government’s position." (slip op. at 37).
  • "It is only by covering his eyes and plugging his ears that any fairminded person could avoid the conclusion that Congress intended, by 'fair implication,' to treat the statutory amendments, whose effect was even more unjust than the effect of the Guidelines, the same way it directed the Guidelines to be treated, that is, to mandate that the amended statutes be applied to all defendants coming before federal courts for sentencing." (slip op. at 42).

Download JudgePonsorMemoonFSA-Watts

Some posts on this FSA issue:

UPDATE Another helpful reader suggested that I spotlight this additional quote from the first few pages of the Watts opinion:

The broader question is whether federal trial courts will be required, for roughly the next five years, to perpetuate a congressionally recognized injustice.  It is disturbing enough when courts, whose primary task is to do justice, become themselves the instruments of injustice, as in the history of our nation it must be acknowledged they sometimes have. But this discomfort reaches its zenith when the injustice has been identified and formally remedied by Congress itself.  For a trial judge, the distastefulness of being forced to continue imposing a rejected penalty becomes unendurable in light of the fact that Congress acted partly because the injustice is racially skewed and, as everyone now agrees, will fall disproportionately upon Black defendants such as Mr. Watts.

The government’s position here is that this court, and all federal trial courts in this country, must robotically continue to impose penalties that all three branches of government -- executive, legislative, and judicial -- and all elements of our political system -- Republicans and Democrats from the most conservative to the most liberal -- have now formally condemned as racially tainted and have explicitly rejected as not only unjust but mistaken from the outset.  For the reasons set forth below, the affront to manifest and undisputed congressional intent advocated by the government here is not required by law.

April 6, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Thursday, March 24, 2011

New report from The Sentencing Project on "Cracked Justice"

Via e-mail I received this report on this notable new report from The Sentencing Project:

A new report from The Sentencing Project, Cracked Justice, ... addresses disparities in cocaine sentencing in 13 states and documents efforts at the federal and state level to correct these injustices.  State cocaine sentencing disparities include:

• In Missouri, where a defendant convicted of selling six grams of crack cocaine faces the same prison term -- a ten-year mandatory minimum -- as someone who sells 450 grams of powder cocaine, or 75 times that amount.

• In Oklahoma, which maintains a 6-to-1 quantity-based sentencing disparity, a ten-year mandatory minimum sentence is triggered for five grams of crack cocaine and 28 grams of powder cocaine.

• In Ohio, sentencing disparities vary across felony categories based on quantity amounts. The state uses a 10-to-1 ratio of 1,000 grams of powder cocaine and 100 grams of crack cocaine for major drug offenses and imposes a ten-year mandatory minimum.

March 24, 2011 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Sunday, March 13, 2011

Oregon report indicates mandatory minimums transfer sentencing power to prosecutor

As detailed in this local artice, which is headlined "Report on Oregon's Measure 11 incites fierce debate," there is a notable new report in Oregon about the impact of mandatory minimum sentencing in the state.  Here are excerpts:

A political firestorm has erupted over whether Measure 11 is working, pitting prosecutors against defense attorneys, victim advocates against victim advocates.  The state Criminal Justice Commission ignited the arguments with a report that concludes the measure, passed by voters in 1994, hasn't worked as intended....

The commission found, for example, that one effect of Measure 11 has been to shift power to prosecutors, who use the threat of a mandatory sentence to win plea deals on lesser crimes....

Proponents of Measure 11, however, attacked the report as politically motivated. The report was slanted to "push a political agenda, which is anti-Measure 11, anti-incarceration, anti-law enforcement and anti-victims," said Steve Doell of Crime Victims United.

The renewed debate comes as legislators, looking to save money amid the state budget crisis, face several proposals to change state sentencing laws. Gov. John Kitzhaber is seeking to again defer tougher sentences for repeat property offenders, and legislation is pending to stall Measure 73, which would increase sentences for some sex offenders and drunken drivers.

There's no question Measure 11 has had a profound effect on Oregon's criminal justice system. By setting mandatory minimum prison sentences for certain offenses, the measure has been a significant factor in pushing the state's prison population from about 3,100 in 1980 to about 14,000 in 2010, according to a February analysis by the Legislative Fiscal Office. The commission's report found that the state prison system would need 2,900 fewer beds had the measure not taken effect.

March 13, 2011 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (4) | TrackBack

Saturday, March 12, 2011

Seventh Circuit rejects FSA's application to defendants sentenced after it changed crack statutes

While I was checking out lots of culture and humanity in Las Vegas yesterday (explanation here), the Seventh Circuit issued an important new opinion concerning the application of the Fair Sentencing Act to pipeline cases in US v. Fisher, No. 10-2352 (7th Cir. March 11, 2011) (available here).  What makes Fishersignificant is that the panel expressly considers and rejects a defendant's claims that there are unique reasons for applying the FSA's new crack sentencing provisions to those initially sentenced after the FSA became law.  Here are key passages from the opinion:

Debate surrounding the crack cocaine sentencing scheme and the infamous “100:1 ratio” has been raging for years, and there is strong rhetoric to be found on either side.  The FSA is compromise legislation and must be viewed as such.  Given the long-standing debate surrounding, and high-level congressional awareness of, this issue, we hesitate to read in by implication anything not obvious in the text of the FSA.  We believe that if Congress wanted the FSA or the guideline amendment s to apply to not-yet-sentenced defendant s convicted on pre-FSA conduct, it would have at least dropped a hint to that effect somewhere in the text of the FSA, perhaps in its charge to the Sentencing Commission.  In other words, if Congress wanted retroactive application of the FSA, it would have said so.

Given the absence of any direct statement or necessary implication to the contrary, we reaffirm our finding that the FSA does not apply retroactively, and further find that the relevant date for a determination of retroactivity is the date of the unde rlying criminal conduct , not the date of sentencing.

We have sympathy for the two defendants here , who lost on a temporal roll of the cosmic dice and we re sentenced under a structure which has now been recognized as unfair. However, “[p]unishment for federal crimes is a matter for Congress, subject to judicial veto only when the legislative judgment oversteps constitutional bounds.”  Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 664 (1974).

As regular readers know, I think this outcome is wrong as a matter of statutory interpretation, in part because I believe statutory construction cannons like the rule of lenity and constitutional doubt provide a basis for reaching the opposite conclusion than the one reached by the Seventh Circuit. Nevertheless, I fear that a number of circuit will end up ruling like the Seventh Circuit here even though there has been a deep split in the district courts on this precise issue.

Some posts on this FSA issue:

March 12, 2011 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New USSC crack guidelines and report | Permalink | Comments (4) | TrackBack

Tuesday, March 01, 2011

"You Can Have Sex With Them; Just Don't Photograph Them"

The title of this post is the headline of this notable commentary by Radley Balko at Reason, which carried the sub-heading "A former cop's 15-year prison sentence illustrates the absurdity of federal child porn laws." Here is how it gets started:

In the spring and summer of 2006, Eric Rinehart, at the time a 34-year-old police officer in the small town of Middletown, Indiana, began consensual sexual relationships with two young women, ages 16 and 17.  One of the women had contacted Rinehart through his MySpace page.  He had known the other one, the daughter of a man who was involved in training police officers, for most of her life.  Rinehart was going through a divorce at the time.  The relationships came to the attention of local authorities, and then federal authorities, when one of the girls mentioned it to a guidance counselor.

Whatever you might think of Rinehart's judgment or ethics, his relationships with the girls weren't illegal.  The age of consent in Indiana is 16.  That is also the age of consent in federal territories.  Rinehart got into legal trouble because one of the girls mentioned to him that she had posed for sexually provocative photos for a previous boyfriend and offered to do the same for Rinehart.  Rinehart lent her his camera, which she returned with the promised photos.  Rinehart and both girls then took additional photos and at least one video, which he downloaded to his computer.

In 2007 Rinehart was convicted on two federal charges of producing child pornography. U.S. District Court Judge David Hamilton, who now serves on the U.S. Court of Appeals for the 7th Circuit, reluctantly sentenced Rinehart to 15 years in prison.  Thanks to mandatory minimum sentences, Hamilton wrote, his hands were tied.  There is no parole in the federal prison system.  So barring an unlikely grant of clemency from the president, Rinehart, who is serving his time at a medium-security prison in Pennsylvania, will have to complete at least 85 percent of his term (assuming time off for good behavior), or nearly 13 years.

Hamilton was not permitted to consider any mitigating factors in sentencing Rinehart.  It did not matter that Rinehart's sexual relationships with the two girls were legal.  Nor did it matter that the photos for which he was convicted never went beyond his computer. Rinehart had no prior criminal history, and there was no evidence he had ever possessed or searched for child pornography on his computer.  There was also no evidence that he abused his position as a police officer to lure the two women into sex.  His crime was producing for his own use explicit images of two physically mature women with whom he was legally having sex. (Both women also could have legally married Rinehart without their parents' consent, although it's unclear whether federal law would have permitted a prosecution of Rinehart for photographing his own wife.)

"You can certainly conceive of acts of producing actual child pornography, the kind that does real harm to children, for which a 15-year sentence would be appropriate," says Mary Price, general counsel for the criminal justice reform group Families Against Mandatory Minimums.  "But this is a single-factor trigger, so it gets applied in cases like this one, where the sentence really doesn't fit the culpability."

March 1, 2011 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (15) | TrackBack

Thursday, February 10, 2011

Second Circuit demands application of old 100-1 crack mandatories ... with laments

Anyone following closely the debate concerning the application of the old crack laws to defendants whose sentences are not yet final will want to check out the Second Circuit's work today in US v. Acoff, No. 10-285 (2d Cir. Feb. 10, 2011) (available here).  Here are the basics:  

Appellee Joshua Acoff pled guilty to possessing five or more grams of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841.  Although the district court accepted Acoff’s plea of guilty to that offense, it declined to sentence him pursuant to Section 841(b)(1)(B), the penalty provision that covers the conduct charged in the indictment and admitted to by Acoff.  The government appealed.  We find that the district court acted unlawfully in sentencing Acoff to a term of imprisonment below the mandatory minimum.  Accordingly, we vacate the judgment of the district court and remand the case so that Acoff can be resentenced consistent with the statutory mandate.

In the course of reaching this ruling, the panel opinion rejects a number of different arguments with which the defendant contended that his pre-FSA crimes ought only be subject to the new reduced post-FSA mandatory minimums.  In addition, Judges Calabresi and Lynch write notable separate concurrences essentially to lament that the current state of the law seems to demand this outcome.  Here is a section from Judge Calabresi's concurrence:

To the extent that one could have viewed what occurred in Congress as a response to a suggestion by courts that the sentencing statutes were heading towards unconstitutionality, one might question whether the traditional presumption against retroactivity should apply.  In circumstances where the legislature has responded to a judicial suggestion of unconstitutionality, the appropriate starting point might well be the opposite: to assume that the change reaches back—at the very least to cover cases pending on appeal at the time of enactment (and perhaps further) — in the absence of a specific statement that some other metric should be used.  The import of this shift in presumption would be to force Congress to focus specifically on the impact of a legislative change resolving a potential constitutional problem, a focus that is not necessary in the run-of-the-mill situation where no countervailing constitutional-level values suggest that a statute’s official “effective date” and its practical application date should be different.  If the statute’s validity was becoming dubious, why should we assume that the legislature wished the statute’s constitutional dubiousness to apply in any case?

And here is a section from Judge Lynch's concurrence:

It is more difficult, however, to understand why Congress would want to continue to require that courts impose unfair and unreasonable sentences on those offenders whose cases are still pending.  Such defendants still need to be sentenced, and there are few persuasive reasons why they should be sentenced pursuant to an unjust law when Congress has already replaced it with a more just one.  It seems likely that simple congressional inattention produced this result: understandably focused on the much larger question of full retroactivity, when Congress decided against making the provisions of the FSA fully retroactive, it may simply have overlooked the distinguishable, and much smaller, category of past offenders who are still being sentenced for pre-FSA crimes.

This is simply a transitional problem.  The class of affected past offenders who are still subject to mandatory sentences calculated pursuant to the old and unjust 100-to-1 ratio is presumably small.  But it is no comfort to those, like the defendant in this case, who are sentenced unduly harshly under a now-discredited and repealed law, to know that a relatively small number of offenders share their predicament.

February 10, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Friday, January 21, 2011

Long, thoughtful (and wrong?) new opinion on FSA application to pending cases

As regular readers may recall, aided by a helpful lawyer in NYC litigating a Fair Sentencing Act issue for a defendant awaiting initial sentencing in a multi-defendant case, I had the opportunity and honor to serve as an amicus in an SDNY case dealing with the issue of applying the FSA's provisions to not-yet-sentenced defendants.  Yesterday, US District Judge Kenneth Karas issued a 58-page opinion in US v. Santana, No. 09-CR-1022 (S.D.N.Y. Jan. 20, 2011) (available for download below), which concludes this way:

The Court recognizes that over the course of the last two decades there has been growing belief among practitioners, courts, commentators, and many others that the 100-to-1 ratio that Congress hastily adopted in 1986 was based on insufficient facts and has resulted in severe sentences that have been disproportionately imposed on certain groups of individuals.  By enacting the FSA, Congress appears to have responded, at least in part, to this consensus. The Court also appreciates the desire of many, including the district judges who must impose mandatory sentences, that there be no more sentences based on the 100-to-1 ratio, and that this sentiment may explain the view that the FSA should govern all sentences going forward.... Indeed, at oral argument, counsel for Defendants, expressing similar sentiment, urged the Court to find some “play in the authority” to apply the FSA to this case. (December 8, 2010 Oral Argument Tr. 51.)  But, here, in light of the Saving Statute, “we are not dealing with optional rules of statutory construction.” Holiday, 683 A.2d at 79.  It is a law that like any other must be applied as written.  And while the goal of those who wish to immediately abandon the old sentencing regime in favor of that adopted in the FSA is understandable, it is a suggestion “addressed to the wrong governmental branch.” Marrero, 417 U.S. at 664.  As Justice Brennan has explained: “Punishment for federal crimes is a matter for Congress, subject to judicial veto only when the legislative judgment oversteps constitutional bounds.” Id.

Here, Congress easily could have made clear its intent, if it wanted to, that the FSA apply to all individuals who had not yet been sentenced.... But here, Congress adopted no such clear provision.

Of course, it remains a possibility that Congress still could enact legislation expressly applying the FSA to all those not sentenced as of August 3, 2010.  Or, it is always possible that the Executive Branch, as Senators Durbin and Leahy have suggested, could exercise its discretion, through its charging decisions, to avoid continued imposition of sentences under the old law.  But, in the end, it is not the obligation or province of the courts to fill in the gaps left by the other branches of government.  Therefore, for the reasons stated herein, the pending motions to apply the FSA to this case are DENIED.

Download Santana FSA opinion

As my amicus filings in the Santana case reveal, I do not think this is the right result. But I remain grateful to have had a chance to participate in this litigation, and I am impressed that a busy district court judge found the time and energy to write at such great length on this important (but transitory) sentencing issue.

Some posts on the Santana litigation and recent related cases:

January 21, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, January 20, 2011

Notable defense of parole focused on prosecutorial discretion

Writing in The Atlantic, Wendy Kaminar has this interesting new commentary, headlined "Why Granting Parole Helps Us Stay Tough on Crime," which stresses the too-often ignored issue of prosecutorial discretion.  Here are excerpts:

Massachusetts governor Deval Patrick recently secured the resignation of the executive director and five members of the seven member Massachusetts parole board, including its chair, after paroled career criminal Domenic Cinelli killed veteran police officer Jack Maguire during a botched robbery attempt in late December 2010.  Not surprisingly the murder of a police officer by a parolee sparked widespread outrage and demands for drastic parole reforms, including an immediate suspension of parole hearings. After a subsequent inquiry found serious mistakes in the conduct of Cinelli's hearing and a serious failure of supervision when he was released, Patrick's shake-up of the agency, which was met with the surprised approval of his conservative critics and the dismay of liberal criminal justice advocates, seemed inevitable. When you hold a high-stakes, high-profile job, you should probably not expect political forgiveness for a series of fatal or near fatal mistakes -- unless you're a prosecutor.

Prosecutorial misconduct is a familiar if not common occurrence that results in the imprisonment of innocent people, the failure even to arrest the guilty, or lenient sentences for offenders when prosecutors are caught engaging in misconduct and enter into plea bargains to avoid exposure....  [In too many] cases, including those involving lengthy, wrongful imprisonments, prosecutorial misconduct is often tolerated, if not trivialized, as its persistence shows. The wrongful imprisonment of innocent people and ruination of innocent lives resulting from intentional government misconduct simply does not arouse the outrage and demands for reform that follow a fateful parole decision, resulting from unintentional mistakes.

In fact, the call for harsher penal laws sparked by a mistaken grant of parole can exacerbate the problem of misconduct by increasing the generally unaccountable, discretionary power of prosecutors through mandatory sentencing schemes, which (as I've noted here) effectively consolidate charging and sentencing authority in the prosecutor's office. In Massachusetts, police and some legislators are pressing for passage of an emotionally charged law (named for murder victim, Melissa Gosule) that would impose mandatory maximum penalties on many third time felony offenders, eliminating opportunities for parole....

If only people were consistent in their mistrust of government: Parole board members are not to be trusted with discretion in granting parole, and judges are not to be trusted with discretion in sentencing convicted defendants; but prosecutors are invariably trusted with significantly increased discretion, despite their track records of abusing it. The illogic of popular, putatively tough anti-crime strategies has long frustrated death penalty opponents and other criminal justice reformers: People who tend not to trust the government with its civil, regulatory power, notably over business or health care, will trust it enthusiastically with awesome, inadequately checked prosecutorial power. They trust that it will prosecute and occasionally execute other people, (only very bad and guilty people) with consistent accuracy and fairness, despite all evidence to the contrary.

January 20, 2011 in Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, January 11, 2011

Struggling to get psyched for Sykes, another ACCA case before SCOTUS

On Wednesday morning, the Supreme Court will hear oral argument in Sykes v. US, yet another case on the docket to resolve a circuit split over what prior crimes trigger the severe mandatory minimum prison terms in the Armed Career Criminal Act.  As this SCOTUSblog page explains, at issue in Sykesis "[w]hether fleeing the police in a car, after being ordered to stop, constitutes a 'violent felony' within the meaning of the Armed Career Criminal Act, which imposes heightened sentences for such violent felonies."

I wrote a preview of the Sykes case for the American Bar Association’s PREVIEW of U.S. Supreme Court Cases, which can be accessed here.   In that preview, I sought to play up how this latest ACCA case "implicates a number of cross-cutting jurisprudential and policy considerations."  But, somewhat annoyingly, the Justices have not in their recent ACCA work spent much time expounding upon any broader jurisprudential and policy considerations, and the issue in Sykesstrikes me as especially narrow.  Thus, as indicated in the title of this post, I am struggling to get psyched for this SCOTUS sentencing case.  Perhaps readers can use the comments to note reasons why Sykes is worth watching with some excitement or anticipation.

January 11, 2011 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

A (partial) account of deep split over application of FSA's new statutory terms to pipeline cases

US District Judge Gregory Presnell, whose first opinion on the application of the new Fair Sentencing Act to pending cases was posted here, has issued now another interesting FSR order entered earlier this week in US v. Green, Case No. 6:08-cr-270-Orl-31KRS (M.D. Fla. Jan. 7, 2011) (available for download below). This opinion notes and summarizes the district court divisions regarding the application of the FSA to offenses committed before its enactment:

[T]he Court has now obtained a survey from counsel in a related case, United States v. Smith, No. 6:10-cr-202 (Doc. 54), which summarizes all written opinions dealing with application of the FSA to defendants whose conduct occurred before August 3, 2010, when the FSA was enacted, but who were sentenced after its enactment.  That survey is attached [and can also be downloaded below].

In sum, there have been no circuit court opinions dealing with the application of the FSA to defendants in the same position as this defendant -– i.e., who were sentenced after August , 2010, for offenses committed before that date.  There are, however, eighteen district court opinions that fall into this category.  Eleven of these opinions, from nine states and ten districts, have held that the FSA should be applied in this circumstance. Seven opinions from three states and four districts have held otherwise.

 Download FSA green_order

Download FSA green_attachment

I am not certain that accounting of 18 written district court opinions on the application of the FSA to these pipeline cases is the entire universe of written opinion on this issue and I am certain that there have been a lot of addition on-the-record resolutions of these issues by various district judges going both ways without the production of a written opinion.  Thus, Judge Presnell's survey is just a partial account of the deep split in the district courts over this issue, which is highly consequential to lots and lots of defendants in lots and lots of courts around the nation.

As explained in this prior post, I remain troubled that the Department of Justice persists with its advocacy policy calling for the unfair and now reformed old crack sentencing statute to be applied for as long as possible to as many defendants as possible.  That concern is enhanced by the reality that this advocacy position is contributing to deep disparity in the sentencing of pipeline crack cases (and my view that DOJ ought to be using its litigation resources and energies on other issues).  It will be interesting to keep an eye on these issues of law and advocacy as they eventually moves to the circuits and possible the US Supreme Court.

January 11, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, January 07, 2011

SCOTUS takes up two plea bargaining cases and another ACCA

Big late Friday news for sentencing fans from the US Supreme Court, as the Justices decided to add three new criminal cases to its docket. Here is an effective description of the new cases from this post at SCOTUSblog:

In two cases, which involve a related issue but will be heard separately, the Court will be deciding whether an individual who rejects a plea offer from prosecutors because the lawyer advised that course has a claim for ineffective legal assistance if that advice was either flawed or produced a less favorable outcome than if the individual had gone to trial. In agreeing to hear state officials’ appeals in Leflar v. Cooper (10-209) and Missouri v. Frye (10-444), the Court told counsel in both to brief and argue an additional question: “What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures?” Presumably, the Court will hear the two cases in back-to-back arguments.

In another criminal case, McNeill v. U.S. (10-5258), the Court will decide whether a conviction under state law can be treated as a serious drug offense for purposes of a longer sentence under the federal Armed Career Criminal Act, if the state law violated did not at the time of federal sentencing did not set a maximum prison term of at least ten years, but had done so at the time the crime was committed. The federal government urged the Court not to hear the issue in a North Carolina case.

The fact that the Justices felt compelled to take up yet another ACCA case is yet another sign that ACCA has to get fixed legislatively ASAP. But that is the B-story here. The two cases dealing with plea practices and ineffective assistance are now arguably the two biggest constitutional cases of the current Term for sentencing law and policy fans.  This AP story about the cert grants provide a bit of factual background on the two cases:

In Michigan, Anthony Cooper's conviction for shooting a woman in the thigh and buttocks after missing a shot to her head was overturned by the 6th U.S. Circuit Court of Appeals in Cincinnati because his lawyer gave him bad advice.  His lawyer told him not to take a plea offer, thinking that there could not be a finding that Cooper intended to murder his victim.  But Cooper was convicted of assault with intent to murder and other charges....

In Missouri, prosecutors offered Galin Edward Frye two deals while seeking his conviction for driving while his license was revoked, but his lawyer never told Frye about the offers. Frye pleaded guilty to a felony charge and was sentenced to three years in prison.

January 7, 2011 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (33) | TrackBack

Wednesday, January 05, 2011

Another district judge rules FSA terms should apply to not-yet-sentenced defendant

US District Judge Gregory Presnell, who long ago already secured a place in my Sentencing Hall of Fame, garners still more appreciation from me for a little order entered earlier this week in US v. Johnson , Case No. 6:08-cr-270-Orl-31KRS (M.D. Fla. Jan. 4, 2011) (available for download below).  This opinion addresses the widely debated issue of whether the new terms of the Fair Sentencing Act are to apply to not-yet-sentenced defendants who committed crack offenses before the FSA became law. These final few substantive paragraphs readily reveal why I especially appreciate Judge Presnell's work here on an issue I have been helping to litigate in recent months:

Several Circuits have rejected the argument that the provisions of the FSA should be applied after the fact to defendants who were sentenced before the Act became law.  See, e.g., United States v. Lewis, 625 F.3d 1224, 1228 (10th Cir. 2010); United States v. Glover, 2010 WL 4250060 at *2 (2d Cir. Oct. 27, 2010); United States v. Bell, 624 F.3d 803, 814 (7th Cir. 2010); United States v. Carradine, 621 F.3d 575, 579-81 (6th Cir. 2010).  No Circuit has yet addressed the question now confronting this Court -- whether the amended (lower) mandatory minimum sentence under the FSA applies to a defendant whose offense occurred before August 3, 2010, but who is sentenced thereafter.

There are, however, district court opinions that have found that the new mandatory minimums are applicable in a case such as this, where the conduct predated the FSA but the sentencing occurred afterward.  See, e.g., United States v. Johnson, Case No. 3:10-cr-138 (E.D. Va. Dec. 6, 2010); United States v. Spencer, Case No. 5:09-cr-400-JW-1 (N.D. Cal. Nov. 30, 2010); United States v. Favors, No. 1:10-cr-384-LY-1 (W.D. Tex. Nov. 23, 2010).

Perhaps the most thorough and compelling opinion is that of Judge Hornby in United States v. Douglas, 2010 WL 4260221 (D. Me. Oct. 27, 2010).  A number of other courts have followed Judge Hornby’s decision.  See, e.g., United States v. Gillam, 2010 WL 4906283 (W.D. Mich. Dec. 3, 2010); United States v. Shelby, Case No. 2:09-cr-00379 (E.D. La. filed Nov. 13, 2009).  Professor Douglas Berman, an expert in the field of federal sentencing, has also made two submissions to Judge Kenneth M. Karas for his consideration in United States v. Santana, Case No. 7:09-cr-01022-KMK-1 (S.D. NY filed Oct. 22, 2009).  These submissions, attached to this opinion as Appendix B, provide persuasive arguments for application of the FSA to all defendants who are sentenced after the effective date of the Act.  Along these same lines, Senator Dick Durbin and Senator Patrick Leahy were lead sponsors of the FSA.  In a letter to the Attorney General dated November 17, 2010, they cited Douglas with approval and implored him to apply the modified mandatory minimums of the FSA to all defendants who have not yet been sentenced, including those whose conduct predates the legislation’s enactment.  A copy of this letter is attached as Appendix C.

The Government acknowledges that I must sentence Johnson under the new FSA sentencing guidelines, which are based on an 18:1 crack-to-powder ratio, but would have me apply the old mandatory minimum sentencing provisions, which are based on a 100:1 crack to powder ratio.  This is an incongruous and absurd result, which is at odds with the intent of Congress in enacting the FSA.

Download Cleotha Johnson FSA order

Some recent related posts:

January 5, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Wednesday, December 15, 2010

"Top prosecutors oppose sentencing 'reform' proposals"

The title of this post is the headline of this local Arizona article, which highlights the all-too-common efforts of some prosecutors (and their lobbyists) to advocate against reform efforts that would give sentencing judges great discretion.  Here are some details:

Top prosecutors from the state's two largest counties are moving to kill some sentencing "reform" proposals before they have a chance to sprout.  Kathleen Mayer, the lobbyist for Pima County Attorney Barbara LaWall, took a specific shot at a proposal by Rep. Cecil Ash, R-Mesa, to make it harder to label something a "crime spree" which requires judges to impose minimum prison terms....  Maricopa County Attorney Bill Montgomery had his own objections to that element of the plan....

Montgomery also chastised Ash, who chairs a special legislative committee reviewing sentencing laws, for proposing to give judges more leeway in sentencing those found guilty of possessing child pornography.  Right now, state law requires judges to impose consecutive prison terms for each item of pornography.  That resulted in one recent case to a man being sent to prison for 200 years -- 10 years for each of 20 items.  "Child pornography is not a victimless crime," Montgomery said.

Ash, an attorney and former public defender, said he is not making such a claim.  But he pointed out that someone who actually molests a child can get out of prison after 35 years. And murderers are eligible for probation after 25 years.  "Unless people want to say possession of child pornography is more serious, more harmful than murder, I think we need to look at our sentencing laws to make appropriate adjustments," Ash said....

The overall theme behind what Ash is proposing would give judges more discretion in sentencing.  That would reverse a trend beginning in 1978 when lawmakers voted to impose mandatory prison terms for certain crimes.  And in 1993 legislators approved a "truth in sentencing" law which says criminals must serve at least 85 percent of their term before being eligible for release.  The result, said Ash, is there are more than 40,000 people in state prisons, a figure he computed out to one out of every 170 residents. "The problem with that is that the state is paying for that," he said. "The taxpayers are paying for that."

Mayer, however, said the proposal which Ash intends to introduce when the Legislature convenes next month goes too far.  "Rep. Ash wants a lot more judicial discretion on a general basis than prosecutors are comfortable with," she said.  And Montgomery said the laws on mandatory sentencing and minimum prison terms are necessary.  "These drastic changes represent a movement away from sentencing laws that have both lowered crime rates and honored the rights of crime victims," Montgomery wrote.   "Changes such as the ones proposed in the legislation undermine public safety and could have very serious consequences for the state."  Ash, however, said other states have managed to alter their sentencing laws and also see a drop in crime.

Another target for Ash is an existing law that imposes mandatory prison terms on those who are convicted of possessing anywhere from two to four pounds of marijuana.  He said that might be appropriate for a member of a drug cartel.  But Ash said it's just as likely that the courier is just some drug user willing to do the job for a "fix," someone who a judge should be able to place on probation.

Mayer said that ignores evidence her office has that these "casual" couriers are not harmless. "The cartels are not doing our home invasions," she said. "It's our local traffickers who are engaging in smaller amounts -- just under 4 pound range -- where we're getting a lot of violence."

Mayer said there already are options for dealing with special situations like this, albeit not for the judges.  She said her office has the ability to put someone who is determined solely to be a drug user and not involved with other crimes into a diversionary program.  There, the person would get counseling and help rather than being incarcerated.

I think it is appropriate and important for prosecutors (and their lobbyists) to comment upon any proposed legislative criminal justice reforms.  But I am always irked when prosecutors work extra hard to deny judges sentencing discretion because they fear that giving judges more authority to impose a fitting sentence risks diminishing prosecutors' always greater authority to assess, structure and frame the sentencing consequences facing a defendant.

December 15, 2010 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (5) | TrackBack

Sunday, December 12, 2010

Local California judge and former prosecutor supporting three-strike offender's appeal

As detailed in this interesting new AP article, which is headlined "Stanford law students appeal three-strike cases," a defendant appealing his three-strikes sentence in California is getting some notable help from some notable folks.  Here are the specifics:

Nearly 15 years after sentencing, an inmate is getting an unexpected chance at freedom — and the judge a shot at redemption.  Students at Stanford Law School's novel Three Strikes Project, which has successfully overturned 14 life prison terms handed down for non-violent crimes under California's unforgiving sentencing law, are joined by an unusual coalition in their latest bid.  The county judge and prosecutor who sent Shane Taylor behind bars for 25-years-to-life in 1996 now want to help set him free....

Taylor's offenses: two burglary convictions when he was 19, and a third conviction for possessing about $10 worth of methamphetamine.   Under California's three-strikes law, any third felony can earn a repeat offender a minimum sentence of 25 years in prison.  It's a law 26 states and the federal government have some variation of, but none is more punitive than California's.

In response to the law, renowned defense attorney Michael Romano co-founded the Three Strikes clinic at Stanford in 2006.  He said he believes that too often the law fails to distinguish the violent career criminal from bumbling, drug addicted defendants who are sent away for at least 25 years for a nonviolent felony conviction....

On Nov. 15, the Stanford clinic asked the California Court of Appeal in Fresno to toss out Taylor's sentence.  Taylor was drinking beer, listening to music with two friends at a vista point above a Tulare County lake in the wee hours when the police rolled up and found about $10 worth of methamphetamine in his wallet.  That would become strike three.

The judge, Howard Broadman, became haunted by memories of the case, believing he had rendered a bad decision in invoking the harsh law. He regretted that in calculating the prison sentence he hadn't ignored one or both of Taylor's previous felony convictions: Attempted burglary and burglary that netted a homeless and methamphetamine-addicted Taylor a pizza paid for with a forged check.

Broadman called the law school last year after reading about the Three Strikes Project's remarkable success in freeing convicts like Taylor who "struck out" and received identical sentences for nonviolent crimes....

Rather than argue innocence, the Stanford crew contends its clients' prison sentences are illegally harsh and wrongly calculated.  "They have the innocence projects," said third-year law student Susannah Karlsson, who is helping present Taylor. "We have the guilty project."...

The prosecutor is joining Boardman, who is now a mediator in Visalia, in supporting a reduced prison sentence.  The appeal contends that Taylor's public defender at trial failed to tell Broadman about Taylor's horrific upbringing that included sexual abuse, a prostitute mother and early drug use. And Broadman says that, had he known of Taylor's past, he would have doled out a more lenient sentence.

Taylor's trial lawyer has filed a declaration saying he failed to properly represent his client, especially at sentencing when he filed legal papers mistakenly labeling Taylor's last offense as a burglary rather than drug possession.

December 12, 2010 in Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9) | TrackBack

Thursday, December 02, 2010

"'Perfect Storm of Injustice'? N.J. Man Serving 7 Years for Guns He Legally Owned"

The title of this post is the headline of this notable story via ABC News.  Here are some of the details, which appears to involve yet another example of mandatory minimum sentencing terms producing another example of excessive over-punishment:

Brian Aitken, 25, a successful media consultant, had been in the process of selling his home in Colorado and moving to a suburban New Jersey apartment to be closer to his son, 2.   But on the afternoon of Jan. 3, 2009, the stress of a recent divorce and messy cross-country move caused him to crack.  Aitken stormed out of his parent's suburban home in Mount Laurel, N.J., hopped into his car filled with belongings and set out on a drive to cool off.

Aitken's mother, a social worker trained to be sensitive to suicidal indicators, instinctively dialed 911 but abruptly hung up, second-guessing her reaction.  But police tracked the call, came to the Aitken's home and greeted Brian when he returned to make sure he was OK. Then, they asked to search his car.

Buried in the trunk, beneath piles of clothes and boxes of dishes, was a black duffle bag holding a boot box containing two handguns; "unloaded, disassembled, cleaned and wrapped in a cloth," his father said.  There were also several large-capacity magazines and cartons of hollow-point bullets.

Aitken had legally purchased the guns at a Denver sporting goods store two years earlier, he said.  But transporting a gun without a special permit or in a handful of exempt situations is illegal in New Jersey, giving officers no choice but to arrest Aitken and charge him with a crime.  The magazines and bullets are also illegal in the state, experts said....

"For quite some time I was pretty confident as soon as intelligent people with logical minds took a look at what happened they might slap him with a fine or something," Aitken's father Larry said. "When the prosecutor came down with an indictment, I was dumbfounded."

But after a two and a half day trial in August, a jury convicted Aitken of the charges and a judge sentenced him to 7 years in prison.  So family and friends have launched a grassroots campaign to set him free, even appealing to New Jersey Gov. Chris Christie for a pardon or reprieve....

[T]he judge in the case did not allow the jury to consider the moving exemption during the trail, ruling that no evidence was presented that Aitken was actually moving at the time the guns were found.  Aitken did not testify in the trial.

"The defendant's attorneys presented evidence that his house was for sale and that at the time of arrest he was travelling from one residence in New Jersey to another," Joel Bewley, a spokesman for the Burlington County Prosecutor's Office, told ABC News.... "This sentence was entirely and statutorily mandated upon this conviction," Bewley said.

December 2, 2010 in Examples of "over-punishment", Mandatory minimum sentencing statutes | Permalink | Comments (8) | TrackBack

Monday, November 29, 2010

Notable FSA application letter from large number of defense counsel to USA for SDNY

As regular readers know, I have been following closely the debates over the application of the new sentencing terms of the Fair Sentencing Act to pending cases.  Indeed, through this amicus letter submitted in a pending case in the Southern District of New York, I have exaplained my view that there is "strong contextual support" for application of the FSA to all pending not-yet-sentenced cases.  In addition, this post of mine from a few weeks ago wondered "Why is Obama's DOJ, after urging Congress to 'completely eliminate' any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?". 

Against this brackdrop, I am pleased to be able to post a letter addressed to Preet Bharara, the United States Attorney of the Southern District of New Yorkset today, which asks about local FSA policy and it signed by a large group of criminal defense attorneys representing defendants in New York. Here is a snippet:

As you're undoubtedly aware, about two weeks ago, Senators Durbin and Leahy wrote Attorney General Holder to urge him to direct federal prosecutors to take the position that the Fair Sentencing Act of 2010 (the "FSA") should be applied to not-yet-sentenced defendants (a copy of their letter is enclosed). Consistent with legislative history we have canvassed in motions submitted in cases throughout this district, the two Senators explain that Congress intended the FSA to apply to all defendants who had not yet been sentenced when the law took effect.1 Judges are already starting to apply the FSA to pending cases over the Government's objection. See, e.g., United States v. Douglas, 2010 WL 4260221 (D. Me. 2010) (Hornby, J.). Included among them is the Honorable Shira A. Scheindlin, who recently applied the FSA to the sentencing of a defendant whose conduct predated its enactment. See United States v. Jeannette Garcia, 09 Cr. 1054 (SAS).

In light of the Senators' letter and what we believe will be an increasing number of decisions applying the FSA to pending cases, we write to inquire whether you plan to adopt a policy requiring (or at least allowing) prosecutors in this district to support defense motions to apply the FSA to such cases. Not only do we believe it would be consistent with congressional intent, the goal of sentencing consistency would be furthered by a uniform policy that accords with the decision of Judge Scheindlin and other district judges. Many of us have more than one client that would be affected by a change in policy. We note that the large number of dispositions that would undoubtedly follow would provide the added benefit of conserving prosecutorial and judicial resources that could be better applied to other cases.

Download Letter to Hon Preet Bharara 11-29-10

Some recent related posts:

November 29, 2010 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, November 18, 2010

"Arizona mandatory-sentencing laws targeted"

The title of this post is the headline of this article about a debate over budget-driven sentencing reform talk among legislators in Arizona.  Here are excerpts:

A GOP lawmaker on Wednesday vowed to propose legislation next year that would give Arizona judges more discretion when sentencing criminals, but another promised to block it.

Rep. Cecil Ash, R-Mesa, who chairs a state legislative committee studying prison sentencing, said the bill would seek to loosen mandatory-sentencing laws, provide more just punishment and save Arizona money.  Mandatory-sentencing laws adopted in the 1990s in Arizona and across the nation have "tied the hands of judges" and left Arizonans paying millions of dollars to imprison non-violent criminals, he said....

Growth in the inmate population has made the state's prison system Arizona's third-largest expense behind education and health care, Ash said.  According to a Department of Corrections analysis, Arizona's prison population is roughly 10 times bigger than it was 30 years ago.

Ash said Arizona had surpassed many states' incarceration rates. "With a population of roughly 6.5 million, we have over 40,000 inmates," Ash said. "The state of Washington, with a population slightly larger than Arizona, has roughly 18,000."

Ash cited the state's budget crisis as reason for looking for ways to decrease spending in the state's corrections system. "I think we can make some improvements that ensure public safety," he said. "The purpose isn't to let people out of prison early; the purpose is to stop wasting resources."

But fellow GOP lawmaker Sen. Ron Gould, the incoming chairman of the Senate Judiciary Committee, said Tuesday that Ash's bill would "never see the light of day."  Gould heads the committee that the bill would likely be assigned to.

"Just because he's a member of my party . . . it's not getting my support," Gould said. "It's beyond a money issue.  It's a principal issue.  I think I have the support of 21 (Senate) Republicans who are not going to allow (for) letting criminals out early."

The attitudes and rhetoric used by state Senator Gould here presents the critical impediment to cost-effective sentencing reforms. I remain hopeful that tea-party types will generally not tolerate politicians placing off-limits entirely cuts in the third-biggest government expense, but this article again highlights the reality that many readily assert that fiscally conservative cuts should not be made to any big government criminal justice expenditures.

November 18, 2010 in Mandatory minimum sentencing statutes, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, November 16, 2010

Does Abbott provide new and added support for applying the FSA to pending cases?

The Supreme Court's unanimous (and unsurprising) opinion in Abbott v. US (available here; discussed here), which adopted the government's approach to the application of the special firearm sentencing provisions set forth in 924(c), may seem of little relevance to anyone but defendants who face multiple sentences for multiple offenses that carry multiple mandatory minimum sentence provisions.  But, for anyone currently litigating another (now hot) statutory sentencing issue, Abbottis still worth a close read.  Specifically, I think defendants and attorneys arguing that the new Fair Sentencing Act's provisions concerning crack sentencing should apply to pending cases can draw some new and added support from the Justices' work in Abbott.  Let me explain my thinking.

First, at slip op. 10 of the Abbott opinion, the Supreme Court stresses the "primary objective" of the statutory amendment at issue in that case.   The Abbottcourt reasons that because Congress meant to broaden the reach of the gun sentences set out in 924(c), the defendant's arguments to limit the reach of that statute were not compelling.  I think the inverse argument could be made concerning the "primary objective" of the new FSA amendments to crack sentencing provisions: because Congress clearly meant to reduce the scope and impact of the disparity between crack and powder offenses, the government's arguments to limit the applicability of the new statute seem to me to be less than compelling.

Second, at slip op. 11 of the Abbottopinion, the Supreme Court stresses the defendants' suggested statutory reading "would result in sentencing anomalies Congress surely did not intend" because, under that reading, "the worst offenders would often secure the shortest sentences."  A similar argument can be made concerning the government's suggested approach to the FSA: because the US Sentencing Commission has amended and made applicable new crack guidelines that plainly apply to pending case involving large quantities of crack, the failure to give the new FSA statutory provision in yet-to-be-sentenced cases means that only "the worst offenders would often secure the shortest sentences" as a result of the FSA's changes while cases are still in the pipeline.

Third, at slip op. 14 of the Abbottopinion, the Supreme Court rejects the defendants' suggestion that Congress expected the federal sentencing guideline to serve as a gap-filler because there is not any indication that "Congress was contemplating the Guidelines' relationship" to mandatory minimum sentencing when it amended 924(c).  But, in sharp contrast, Congress in the FSA plainly and expressly did contemplate the Guidelines' relationship to crack sentencing statutes when it enacted the fair Sentencing Act.  Thus, the kind of Guideline-centric statutory construction claim rejected in Abbottshould have far more force in the FSA setting.

Fourth, at slip op. 16 of the Abbott opinion, the Supreme Court asserts there is "strong contextual support" for government's statutory interpretation in that case.  In contrast,  as I suggested in this amicus letter submitted in a pending case in the Southern District of New York, I see "strong contextual support" for defendants' proposed application of the FSA to all pending not-yet-sentenced cases.

Some recent related posts:

November 16, 2010 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact | Permalink | Comments (3) | TrackBack

Monday, November 15, 2010

SCOTUS adopts majority reading of 924(c) mandatory minimum provisions in Abbott

The Supreme Court today handed down its opinion in Abbott v. US, No. 09–479 (S. Ct. Nov. 15, 2010) (available here). The Justices unaniminously (and unsurprisingly) adopted the government's approach to the application of the mandatory minimum gun sentences set forth in 924(c). Here is a key paragraph from the start of Justice Ginsburg's opinion for the Court:

We hold, in accord with the courts below, and in line with the majority of the Courts of Appeals, that a defendant is subject to a mandatory, consecutive sentence for a § 924(c) conviction, and is not spared from that sentence by virtue of receiving a higher mandatory minimum on a different count of conviction.  Under the “except” clause aswe comprehend it, a §924(c) offender is not subject to stacked sentences for violating §924(c).  If he possessed,brandished, and discharged a gun, the mandatory penalty would be 10 years, not 22.  He is, however, subject to the highest mandatory minimum specified for his conduct in §924(c), unless another provision of law directed to conduct proscribed by §924(c) imposes an even greater mandatory minimum.

November 15, 2010 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Friday, November 05, 2010

US Sentencing Commission report on mandatory minimums coming in Fall 2011

As noted in this prior post, in October 2009, Congress directed the US Sentencing Commission to undertake a comprehensive review of mandatory minimum sentencing penalties and to report its findings and recommendations to Congress within a year.  I learned today at the awesome ABA event that the USSC got an extension on its due date and that we now can/should not expect to see the USSC's big mandatory minimum report until probably October 2011.  Oh well.

I suspect the report will be worth the wait, and today I urged members of the USSC to release data about the application of mandatory minimums provisions ASAP.  Though I am somewhat disappointed we all now have to wait another year to get the USSC's wisdom on the wisdom of mandatory minimum sentencing provisions in the post-Booker world, I am somewhat hopeful that we might get some data from the USSC on this front sooner rather than later.

November 5, 2010 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, November 04, 2010

Looking closely at the tougher sentences approved by Oregon voters in Measure 73

As detailed in this local commentary, which is headlined "Aftermath of Measure 73: Voters tell state to sober up on DUII," the citizens of Oregon used direct democracy to get tougher on drunk drivers and sex offenders.  Here are the details and some spin:

Oregon voters just passed another crime measure the state can't afford. That leaves the Legislature with two choices: Suspend this crime measure like the last one, or adapt to it.

Adapting is the only defensible choice.  In fact, Measure 73 may force the state to get smarter about impaired driving on the first arrest, rather than waiting for multiple arrests or fatalities to acknowledge problems with drug addiction, alcoholism and public safety.

Actually, let's talk in more human terms.  At least seven people died in apparent DUII crashes in Oregon during a three-week stretch in September.  Two teenagers struck dead in a Salem crosswalk.  Two grandparents hit in Klamath Falls. Two passengers killed near Florence. One driver dead in the Molalla River.  Seven lives ended, and for what? "If those were seven murders in 21 days, we would be outraged," says assistant attorney general Deena Ryerson, who specializes in drunken-driving cases for the state Department of Justice.

Voters warmly embraced Measure 73 in Tuesday's election, giving it an approval rating of 57 percent.  The citizen initiative is a classic populist concoction of tougher penalties for society's least sympathetic characters -- sex offenders and repeat drunken drivers.  Its passage was a sure thing from the moment it qualified for the ballot.

Surprisingly, the tougher penalties for sex offenders won't cost much money, since Oregon already locks up many of its worst offenders for life. The costly part is the provision requiring 90-day jail sentences for drunken drivers on their third DUII conviction.  Because of state sentencing guidelines for felonies, that 90-day sentence can turn into 13 months behind bars, according to the Oregon Criminal Justice Commission.

"One thing to figure out is where to put those people," says Multnomah County Circuit Judge Eric Bloch, a leading voice on county DUII policy. Bloch worries the new measure (not to mention the state budget crisis) could undermine the success of the county's voluntary supervision program for repeat offenders, which lets judges use rewards and sanctions to force people to face their addictions....

Fortunately, Measure 73 isn't just an unfunded mandate.  It's also a call to action.  Several counties, including Multnomah, are finding earlier and more reliable ways to sort the chronic impaired drivers from those who are scared straight by their first DUII arrest.  That allows judges to zero in on drivers who pose a greater public safety threat -- whether because of indifference, addiction or both....

What's more, state lawmakers can use the next session to tweak the state's DUII laws in a few low-cost ways.  For example, they can tighten up the state's ignition interlock laws, which look tough on paper but fall apart in real life.  Since the cost of the interlock is paid mostly by drivers, it's an affordable way for Oregon to make the roads safer -- and it helps offenders in areas without adequate public transit get to work.

During the campaign, initiative sponsor Kevin Mannix expressed his frustration at the Legislature for refusing to take drunken driving more seriously.  Lawmakers often flinch at sanctions that might inconvenience the proverbial average drinker, upset the beverage lobby or require more than a couple days of jail for the first few arrests. "This measure," Mannix said in September, "is meant to wake folks up on drunk driving."

I hope he's right.  Set aside the wisdom of passing unfunded mandates during a budget crisis.  Remember those seven deaths in September, and ask what Oregon has to lose by trying something different.

Regular readers know that I have long be urging sentencing law and policy to "wake folks up on drunk driving," so I am pleased that Oregonians have made this chnage on their own. A mere 90 days as a mandataory jail term for the third drunk driving offense is the kind of measured mandatory minimum sentence I think should serve public policy and public safety well.

November 4, 2010 in Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, November 02, 2010

When will the US Sentencing Commission's (now overdue?) mandatory minimum report come out?

As noted in this recent post, in October 2009, Congress directed the US Sentencing Commission to undertake a comprehensive review of mandatory minimum sentencing penalties and to report its findings and recommendations to Congress within a year.  I had marked the end of October 2010 as the time when this report was due, but the report has not yet been released and I have heard a rumor that the USSC got some sort of (secret?) extension on its deadline.

I am actually glad the USSC report on mandatory minimum has not come out yet; this week all the news is justifiably focused on today's election and its likely aftermath.  That said, I really would like to know when the US Sentencing Commission plans to release this important report.  (I would also like to know how and from whom the USSC got an extension, but that's not really a big deal if the report is still coming soon.) 

For various reasons, I think the coming lame duck period of Congress might be an especially good time for some needed reforms of some of the worst aspects of existing federal mandatory minimum sentencing provisions (such as, for example, the stacking of 924(c) mandatory minimums).  But it strike me as wise for Congress to await the USSC's forthcoming report before doing much on this front. 

Thus, I hope this (overdue?) USSC report on federal mandatory minimum sentencing provision is going to be coming out in the not too distant future.  I also hope that any readers in the know about this matter will use the comments to report (perhaps anonymously) on just what is now going on in this arena.

November 2, 2010 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, October 31, 2010

Will the US Sentencing Commission's forthcoming mandatory minimum report make any big news?

In October 2009, Congress directed the US Sentencing Commission to undertake a comprehensive review of mandatory minimum sentencing penalties in one provision of the Matthew Shepard and James Byrd Hate Crimes Prevention Act, and report its findings and recommendations to Congress.  I believe that report is due to be released by the USSC this coming week, and I am eagerly waiting and hoping for the USSC to make some bold statements about the harms of the mandatory minimum sentencing provisions.

Even if the USSC report is not bold in terms of recommendations, it should still include lots of interesting and fresh data about the application and operation of mandatory minimum sentencing provisions.  As explained by the USSC's current chair at a May 2010 USSC hearing about mandatory minimums (transcript here), this USSC report is required to cover a lot of ground:

[F]irst, compilation of all mandatory minimum sentencing provisions under 17 federal law;

Second, an assessment of the effect of mandatory minimum sentencing provisions under federal law, on the goal of eliminating unwarranted sentencing disparity and other goals of sentencing; 

Third, an assessment of the impact of mandatory minimum sentencing provisions on the federal prison population;

Next, an assessment of the compatibility of mandatory minimum sentencing provisions under federal law and the sentencing guidelines system which was established under the Sentencing Reform Act of 1984, approximately 25, slightly more than 25 years ago; and also compatibility with the sentencing guidelines system in place since Booker v. United States, decided just a little bit over five years ago;

Next, the bill provides for a description of the interaction between mandatory minimum sentencing provisions under federal law and plea agreements entered into by practitioners; 

Next, the piece of legislation calls for a detailed empirical research study of the effect of mandatory minimum penalties under federal law, and a discussion of mechanisms other than mandatory minimum sentencing laws by which Congress can take action with respect to sentencing policy; [and]

The report may also include any other information that the Commission determines would contribute to a thorough assessment of mandatory minimum provisions under federal law.

October 31, 2010 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack