Saturday, February 18, 2012

Highlights from DOJ testimony to US Sentencing Commission about federal sentencing concerns

I cannot even hope to summarize all the interesting stories emerging from the US Sentencing Commission hearing on Thursday concerning the operation and potential reform of the modern post-Booker federal sentencing system.  But, in addition to once again urging all federal sentencing fans to review all the written testimony from the hearing (linked via the official agenda here), I can also highlight some notable passages from this written testimony from the Justice Department.  Though the entire testimony ought to be reviewed closely, these passages especially caught my attention:

We are now on a funding trajectory that will result in more federal money spent on imprisonment and less on police, investigators, prosecutors, reentry, and crime prevention.  At the same time, state and local enforcement and corrections budgets are under severe strain.  Taken together, and given the scale of current federal imprisonment penalties, we do not think this trajectory is a good one for continued improvements in public safety.

Prisons are essential for public safety.  But maximizing public safety can be achieved without maximizing prison spending.  And in these budget times, maximizing public safety can only be achieved if we control prison spending.  A proper balance of outlays must be found that allows, on the one hand, for sufficient numbers of investigative agents, prosecutors and judicial personnel to investigate, apprehend, prosecute and adjudicate those who commit federal crimes, and on the other hand, a sentencing policy that achieves public safety correctional goals and justice for victims, the community, and the offender.

This is all relevant to federal sentencing, because the federal prison population remains on an upward path.  Given the budgetary environment, this path will lead to further imbalances in the deployment of justice resources....

One way to reduce prison expenditures is to reduce the total number of prisonyears that inmates serve in the Federal Bureau of Prisons.  To that end, the Department has proposed limited new prison credits for those offenders who behave well in prison and participate in evidence-based programs with proven records of reducing recidivism.  We believe this is one example of a responsible way to control prison spending while also reducing reoffending.... 

We believe mandatory minimums in certain areas are not only reasonable, but are an essential law enforcement tool to increase public safety and provide predictability, certainty and uniformity in sentencing.  At the same time, we recognize that when the severity of mandatory minimum penalties is set inappropriately, consistent application is often lost and just punishment may not be achieved.  The Commission’s report reached the same conclusion.

There are also interesting passages about post-Booker disparities and the role of offender circumstances at sentencing in this DOJ testimony.  And all of the themes in this testimony seem certain to play a role if (and when?) talk of significant sentencing reform (and even a big "Booker fix") moves forward in the US Sentencing Commission and/or in Congress.

Some recent related posts:

February 18, 2012 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8) | TrackBack

Tuesday, February 14, 2012

Canadian judge resisting mandatory sentencing provisions

The Toronto Globe and Mail has this new article, headlined "In challenge to Ottawa, judge refuses to impose mandatory sentence" which provides a northern perspective on the classic concerns about federal judges forced to impose rigid mandatory sentencing terms. Here are excerpts from the piece:

An Ontario Superior Court judge has refused to impose a mandatory three-year sentence on a man caught with a loaded handgun, putting the courts on a collision course with the federal government’s belief in fixed sentences that provide judges with little discretion.

In a decision Monday, Madam Justice Anne Molloy added fuel to a rising sense of judicial anger over mandatory minimum sentences by striking down the compulsory term as cruel and unusual punishment. Instead, she sentenced the defendant, Leroy Smickle, to a year of house arrest. Judge Molloy concluded that Mr. Smickle, a 30-year-old Toronto man with no criminal record, had merely been showing off by striking a “cool” pose over the Internet when police happened to burst into an apartment on March 9, 2009, in search of another man.

The government has adamantly held to the view that mandatory minimums are a necessary restraint on judges who might impose inappropriately lenient sentences for certain offences. That is part of a larger tough-on-crime agenda that includes everything from harsher prison sentences to restricting parole and pardons.

Several months ago, in another major challenge in Ontario Superior Court, a similar sentencing provision was upheld in a firearms case, Regina v. Nur. That, combined with the Smickle ruling, could well result in a high-profile appeal that goes all the way to the Supreme Court of Canada.

Critics argue that a one-size-fits-all sentencing policy inevitably leads to unfair results. In her ruling Monday, Judge Molloy added her voice to those criticisms by saying there are an endless number of scenarios where a fixed sentence would be so cruel as to violate the Charter of Rights....

“In my opinion, a reasonable person knowing the circumstances of this case and the principles underlying both the Charter and the general sentencing provision of the Criminal Code, would consider a three-year sentence to be fundamentally unfair, outrageous, abhorrent and intolerable,” Judge Molloy said....

The judge noted that bad drafting was partially to blame for the legal straitjacket she found herself in. She took issue with a discrepancy in the firearms law, passed in 2008, which allows a judge to impose a more lenient sentence should the Crown choose to proceed summarily with a charge – an option that includes no jury and swifter resolution. She said that if the Crown instead proceeds by indictment, as it did in Mr. Smickle’s case, the minimum sentence automatically becomes three years.

The discrepancy created by the two sentence ranges is so “irrational and arbitrary” that it would shock the community were she to impose the mandatory sentence on Mr. Smickle, Judge Molloy said.

February 14, 2012 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (12) | TrackBack

Friday, February 10, 2012

A judicious perspective on recent federal racial sentencing disparity research

I am extremely plesed and grateful to have received this morning an e-mail from Judge Richard G. Kopf, Senior United States District Judge for the District of Nebraska, with the following comments about some recent posting on this blog (which he kindly gave me permission to post here [with my links inserted]):

Several quick observations about the racial disparity study mentioned in your post entitled “Don’t Blame Judges for Racial Disparity.”  I have now had a chance to read “Racial Disparity in Charging.”

* Kudos to Professors Rehavi and Starr for their hard and good work.

* It would have been helpful to provide data summaries showing raw numbers.

* The significance of this study is modest from a policy perspective because, as the authors indicate, 80% of black men in the study never faced a statutory minimum. (See page 22 the download from SSRN.)  Since we have no idea of the absolute numbers involved of the black men who are said to be impacted, it is very hard gauge whether a policy maker should care.

* The study appears not have included drug and child pornography cases. (Id.)  If so, the missing data is a large impediment to making sensible generalizations.  Such an omission, if true, also calls into question most, if not all, of the statistical conclusions drawn from the study if one is concerned with the whole universe of criminal cases in the federal system.  For example, recognizing that drugs and child pornography comprise a large and high profile segment of the federal criminal universe, one might suppose that black male defendants may face more mandatory minimums charges in drug cases, but one might also suppose that white males face more mandatory minimums in kiddie porn cases.  In any event, one does not know.

* The charging of a mandatory minimum is frequently ameliorated after sentencing by virtue of a Rule 35(b) motion by the government.  So far as I can tell, the study does not try to grapple with that fact.  In some districts with heavy criminal caseloads (like Nebraska), a Rule 35(b) motion, rather than a motion prior to sentencing, is the norm. Studies that don’t address that issue or assume that Rule 35(b) motions will be filed in the same proportion as departure motions prior to sentencing may be quite misleading.

Some recent related posts:

February 10, 2012 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (29) | TrackBack

Thursday, February 09, 2012

"Don't Blame Judges for Racial Disparity"

The title of this post is the headline of this new commentary appearing at The Huffington Post authored by Julie Stewart, the President of Families Against Mandatory Minimums (FAMM). Here is how it starts:

It's almost too much to bear.  After decades of defending some of the most racially discriminatory mandatory minimum sentencing laws ever written, some lawmakers on Capitol Hill and their allies are now saying concern about racial disparity is motivating them to "fix" the federal sentencing guidelines. A new comprehensive report out of the University of Michigan makes clear that these legislative efforts are as misguided, as their proponents' stated concerns are transparently disingenuous.

In 2010, the U.S. Sentencing Commission analyzed recent sentencing data and concluded that the disparity in sentences received by blacks and whites was growing -- particularly after mandatory guidelines became advisory. The Commission warned against using its data to conclude judges were exercising discretion in a racially biased manner. And its warning seemed well-advised when a more rigorous, follow-up study by the University of Pennsylvania contradicted key Sentencing Commission's findings.

Undeterred, those seeking to restore mandatory guidelines insist that judges are to blame for unwarranted racial disparity in sentences.  They seek to pass legislation to reverse the effect of the Supreme Court's decision in United States v. Booker, which held that the federal sentencing guidelines should advise judges, but not bind them.  Thus, to the well-worn charge that federal judges (half of whom, inconveniently, were appointed by Republican presidents and approved overwhelmingly by Republican senators) are soft on crime, we now hear that some of these judges are racists, too.

Mandatory sentencing guidelines, just like mandatory minimum sentencing laws, transfer discretion from judges to prosecutors. Prosecutors, already the most powerful players in the criminal justice system, get to choose not only who to charge and what crimes to charge, but they also get to dictate what sentence a defendant will receive if found guilty since judges have little or no power to disagree. If this extraordinary concentration of power in the hands of one group of federal officials does not convince the public to reject a restoration of mandatory guidelines, the findings of this comprehensive new study should.

"Racial Disparity in Federal Criminal Charging and its Sentencing Consequences" is the understated title of the incredibly important and timely study conducted by Sonja Starr, a law professor from the University of Michigan, and M. Marit Rehavi, an economics professor from the University of British Columbia. The study, the first of its kind, looked at 58,000 federal criminal cases -- at every step where discretion and bias might arise, from arrest through sentencing -- in order to determine the impact of decisions made by prosecutors (rather than judges) on racial disparity in sentence lengths.

In particular, the study focused on how whites and blacks arrested for the same offense were ultimately sentenced. The researchers found significant black-white disparities in the overall severity of initial charges, but saw the most dramatic differences when they examined charges carrying mandatory minimum sentences. Black men were on average more than twice as likely be charged by prosecutors with a crime that carried a mandatory minimum sentence as were white men, even after holding other factors constant.

Those initial charging differences led inexorably to sentencing differences. The gap in sentence lengths between black and white offenders is largely explained by differences in criminal records and in the arrest offense. When you control for those two factors, and others such as gender, age, and district, however, the difference between sentences narrows to almost 10 percent on average. Because 10 percent is still a significant disparity, the authors looked for its cause(s). They found that the gap was caused by differences in the severity of the initial charge. Further, they found that this disparity was largely a result of the prosecutors' decisions to file mandatory minimum charges against blacks more often than against whites, even when the conduct was the same and the mandatory minimum bearing charges could have been filed against whites.

Some recent related posts:

February 9, 2012 in Booker and Fanfan Commentary, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (33) | TrackBack

Tuesday, February 07, 2012

Highlighting how mandatory minimums produce sentencing disparity, not uniformity

This is often claims that mandatory minimum sentencing laws provides a means to limit the impact of judicial sentencing discretion and thereby ensure greater sentencing consistency. Serious student of sentencing policies and practices know, however, that these laws mostly just shift discretion to prosecutors at the charging and bargaining stages and thus can often produce much greater (though often also much more hidden) disparities than judicial sentencing discretion.

This lengthy article appearing in today's Philadelphia Inquirer does a very nice job discussing these realities. The piece is headlined "'Mandatory minimum' laws can mean grossly disparate sentences for gun crimes," and here are excerpts:

Laid off from his job, [Leroy] Smith went to his computer, copied out a list of 7-Eleven stores in and around Philadelphia, grabbed a gun, and started sticking them up.  The clerks and customers were terrified.  Smith fired his revolver once, by accident, and almost shot himself in the leg.

Police caught the former Marine eight weeks after his crimes had started in June 2007. Within hours, he confessed to a dozen robberies that netted him an unimpressive $2,510, plus cigarettes, chips, and soft drinks.

Then Smith made his really, really big mistake.  In 2009, he rejected a plea bargain to serve 25 years and went to trial.  A federal jury convicted him of 10 robberies.

Because Smith had been charged under a "mandatory minimum" law, the judge could not weigh the trial testimony or consider that Smith had no previous convictions.  Automatic penalties written by Congress kicked in.  So Smith was sentenced to two centuries, three decades, and two years.  The 232-year sentence was 10 times the average 2009 federal sentence for murder.

Critics call such extreme disparities a "trial tax," and say it amounts to a penalty for exercising the right to trial by jury.  "He needs to be punished," defense attorney Christopher D. Warren said in court, "but based on my experience, he hasn't done anything which requires him to die in a federal prison."...

The case of the former nightclub bouncer, 41, now in a maximum-security prison in Colorado, is one of an increasingly controversial group of federal cases involving laws that impose mandatory prison terms required by Congress.  Federal prosecutors in Philadelphia make aggressive use of the laws.

Legal scholars and critics say mandatory penalties mean that those prosecutors -- not judges -- end up determining how much prison time a defendant receives by deciding what charges are filed and what deal is offered before a trial.

Smith was arrested by local police and initially charged in state courts, where a conviction would likely have meant a 10- or 20-year sentence. Then the U.S. Attorney's Office picked up his case, charging him under a federal statute that makes it a crime to brandish or use a gun while committing another "crime of violence." That includes armed robberies in which no one is shot or injured.  Legal insiders refer to the law as "924c," its section in the federal criminal code....

Federal prosecution of what are typically state crimes stepped up more than a decade ago in reaction to drug and violent crimes that seem to overwhelm local courts. "I do not think of it as a trial penalty," said U.S. Attorney Zane D. Memeger, who runs the team of 120 federal prosecutors in the Eastern District of Pennsylvania.  Defendants are given a choice, he said, to plead and cooperate, or risk trial and a stiff sentence. "You have to make a decision. It's not my fault if you make a bad decision," Memeger said.  Critics "are not living in these communities where gunfire is rampant," he said....

Congress increased the severity of mandatory minimum sentences in the 1980s and 1990s. One of the few studies to analyze the effect of mandatory-minimum laws was released in October by the U.S. Sentencing Commission.  Its 2010 data showed Philadelphia leading the nation in convictions under the 924c law.  There were pleas or guilty verdicts against 134 defendants. Twenty were convicted of multiple counts, meaning they faced the tough 25-year add-on sentences.  Defendants who pleaded guilty in exchange for having all 924c charges dropped were not counted.

The power of prosecutorial discretion was demonstrated in two other area armed-robbery cases.  In August, three codefendants in a string of eight robberies pleaded guilty and received sentences ranging from three to 18 years.  A fourth man, Devon Brinkley, 24, of Philadelphia, went to trial, was convicted, and was sentenced to 107 years. Defense attorney Vernon Z. Chestnut called the sentence "so disproportionate to the actual crimes that it is shocking to the conscience."

In another area case, two men were indicted by federal prosecutors in 14 armed robberies in Philadelphia at the same time as LaRue Smith was robbing 7-Elevens.  Christopher Sanders, then 22, and Theodore Kelly, then 29, opened negotiations with federal prosecutors.  Details of their case are unavailable because much of their plea agreements and other documents are under seal, an increasingly common practice when plea bargains are involved.  Prosecutors typically say they agree to such stipulations to protect cooperating witnesses.

What is public knowledge is that the two men received the benefit of cooperation. In Sanders' case, prosecutors dropped nine counts of the mandatory-minimum gun law, saving him from a 207-year mandatory sentence.  Instead, he got 20 years.  Kelly's sentence is not recorded in the public court record. Three counts under the gun law were dropped, and the federal Bureau of Prisons says he is due to be released in 2017.

Federal rules say that there should be similar penalties for similar crimes and that prison time should be no longer than necessary for fair punishment.  But that theory runs up against the messy reality of the nation's justice system.  Nationwide, only about 3 percent of federal defendants go to trial, and lawyers acknowledge the justice system would grind to a halt if that figure increased significantly.

Memeger, who took office in 2010, would not talk about individual cases ... [but] has little sympathy for defendants who commit violent crimes and then reject a deal from the government. "You have the ability to make an informed choice, and you blew it. Whose fault is that? Not the government's," he said....

Lifetime incarceration for crimes committed by inmates in their 20s and 30s means that taxpayers will be paying for housing, meals, and medical care for inmates in their 50s, 60s, and 70s and older.  That group will include Brinkley, the stickup artist with the 107-year sentence he received after rejecting a deal to serve 30 years.  His first trial ended in a mistrial, there was a hung jury in the second, and he was convicted in the third.

LaRue Smith, the 7-Eleven robber, admitted the crimes but tried to convince the jury that federal prosecutors had no right to try him for what are ordinarily considered state crimes. Higher courts have long rejected that argument.  At a 2009 hearing, then-U.S. District Judge Bruce W. Kauffman said he was "stunned" by Smith's decision to admit his guilt and insist on a trial.

Christopher Warren, Smith's attorney, said Smith's attitude toward a plea, combined with a long sentence, was not uncommon. "I have encountered this attitude a lot," Warren said. "They think that a 25-year (plea-bargain sentence), their life is effectively over," and go to trial, hoping lightning will strike.

"The reason for not taking it," Smith wrote in an e-mail from prison, "was the fact that I had not murdered or even attempted to murder anyone. . . . and the fact that I was a "FIRST-TIME-OFFENDER."... At his trial, Smith said he only robbed enough stores to pay his rent and provide for his fiancée and young son.

During cross-examination, Assistant U.S. Attorney Michelle Rotella asked Smith if he had the same concern for his victims.  "Did you ask your first victim, the one where you came around the counter and shoved the gun in his stomach . . . if he had kids or a family?"  No, Smith admitted.

Some recent related posts: 

February 7, 2012 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Monday, January 16, 2012

"Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences"

The title of this post is the title of this important and potent new paper by Professors Marit Rehavi and Sonja Starr, and it seems especially fitting to post it on MLK Day.  Here is the abstract:

This paper assesses the extent to which the large disparities in sentencing outcomes between black and white defendants can be explained by disparities in prosecutors' initial choice of charges, a critical stage overlooked by existing studies of sentencing disparities. To analyze charging, we pair newly constructed measures of charge severity with a newly linked dataset that traces federal cases from the arrest through sentencing.

We find that black arrestees, especially black males, face significantly more severe charges conditional on arrest offense and other observed characteristics.  The disparities in the use of charges that carry mandatory minimum sentences are particularly striking. These disparities appear to be major drivers of sentencing disparity.  Black males face significantly longer sentences than white males do, on average and at almost every decile of the sentence-length distribution, even after conditioning on arrest offense, criminal history, district, and age.  However, the addition of controls for initial charges renders most of these disparities insignificant.  Indeed, the otherwise-unexplained racial disparities at the mean and at most of the deciles can be almost entirely explained by disparities in a single prosecutorial decision: whether to file a charge carrying a mandatory minimum sentence.

January 16, 2012 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (7) | TrackBack

Saturday, December 24, 2011

Ballot proposal to reform California's three-strikes law moves forward

As reported in this local article, which is headlined "Three strikes reform advances: Language OK'd for ballot; signatures needed," a proposal to bring sentencing reform to the California voters in 2012 continues to progress.  Here are the details:

A proposed ballot measure aimed at reforming California's three strikes law has made it past an important hurdle.  Attorney General Kamala Harris' office has approved the bill's language — crafted by Stanford law professors — allowing backers to begin collecting signatures to get the measure on the June 2012 ballot.

Supporters say the measure could end up saving taxpayers $100 million per year in reduced incarceration and prosecution costs.  The proposed measure differs from past efforts to change the law that went into effect after voters approved it in 1994.

Under the three strikes law, offenders who commit serious, violent crimes can have their sentences doubled if convicted of a second "strike" and can receive 25 years to life in prison on their third strike.  The third strike, unlike the first two, does not have to be a serious or violent crime — and it is that aspect that has drawn the most criticism....

The new proposed ballot measure requires that the third strike be a serious, violent crime. The only exception is in the case of convicted murderers, rapists and child molesters, who can still be sentenced to 25 to life for less serious felonies.  The measure would also allow certain inmates convicted under non-serious third strikes to petition for re-sentencing....

More than 8,000 third strikers are serving life sentences in California, and officials estimate that one-quarter of them were convicted of non-serious, nonviolent crimes....

Proponents of the new measure, now officially titled "The Three Strikes Reform Act of 2012," must collect more than 500,000 valid signatures for it to qualify for the June ballot.

I am intrigued, and a bit puzzled, that this article talks about this three-strikes reform proposal appearing on the "June 2012 ballot" rather than on the ballot in November 2012.  This entry at Ballotpedia explains that June 2012 is when California is scheduled to have its presidential primary vote, but it also suggests that the current plan is for most ballot initiative to show up on the November 2012 ballot.  My guess is that this news report is just guessing about when this three-strikes reform proposal would come up for a vote, and I would offer the alternative guess that it is more likely to ultimately appear on the November 2012 ballot.

December 24, 2011 in Mandatory minimum sentencing statutes, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, December 21, 2011

"California Prisons Can’t Afford Costly Three Strikes Law"

The title of this post is the headline of this editorial from the Bloomberg editorial board.  Here is how it begins:

The costly mess that is the California prison system has produced inmate strikes, violence and a Supreme Court ruling that its teeming institutions are unconstitutional.  Now it may produce a welcome byproduct: justice.

Last week, the state gave the go-ahead to a proposed ballot initiative to modify California’s “three strikes” law, enabling backers of the initiative to begin gathering the signatures necessary to put it to a vote.  Approved by voters in 1994 after the kidnapping and murder of 12-year-old Polly Klaas by a career criminal, the law reflected the public’s frustration with pervasive and seemingly ever-more-violent crime.

Two dozen other states adopted three-strikes laws as well, but none is as indiscriminately punitive as California’s, which allows any felony to qualify as a third strike.  The state has imposed sentences of 25 years to life for third strikes such as shoplifting a pair of socks and prying open the door to a church food pantry.

Many of the more than 8,000 prisoners serving third-strike sentences in California are hardened, violent criminals who have earned lengthy terms, or life, behind bars.  Their sentences would not be shortened by the ballot initiative.  But more than 3,600 third-strikers have committed crimes that were neither violent nor serious.  In addition, local prosecutors and judges exercise broad discretion on third-strike sentencing, producing vast disparities among the state’s counties.

The original three-strikes law was written too broadly to provide just punishment in the thousands of circumstances it covers.  With the state buckling under the strain of chronic budget deficits and a sagging economy, it is now too expensive to maintain.  According to the state auditor, the cost of imprisoning nonviolent three-strikes offenders for 25 years is $4.8 billion.  (California will spend roughly $10 billion on prisons this year -- more than it spends on its once-renowned higher education system.)  Backers of the initiative say it will save at least tens of millions of dollars a year.

December 21, 2011 in Mandatory minimum sentencing statutes, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, December 16, 2011

"Three men get 1-year sentences for medical marijuana operations"

As helpful reader sent me this local article from Montana, which has the headline that serves as the title of this post.   I am quoting extensively from this piece, in part because there are so many notable elements to this story:

Three men who openly operated medical marijuana businesses in Helena and Great Falls were sentenced in federal court Thursday to a year in prison.

In an emotionally charged hearing, Senior U.S. District Court Judge Charles Lovell handed down the prison terms to Joshua Schultz, Jesse Leland and Jason Burns.  About 75 friends and family members who packed into the federal courthouse in Helena were hoping the judge would take the recommendation of probation made by the men’s attorneys, but also feared that the judge might impose a mandatory minimum sentence of five years or even the maximum of 40 years.

Yet judges are allowed discretion when it comes to sentencing, even with mandatory minimums.  Since the men had admitted their guilt, cooperated with the U.S. Attorney’s Office, had minimal if any criminal records and believed they were in compliance with state laws governing medical marijuana, court officials recommended a guideline sentencing range of 24 to 30 months.

But Lovell lowered the sentences even further, noting that this was a highly unusual case, pitting state against federal laws regarding marijuana.   “The sentencing range that established the guidelines has been, in the judgment of the court, excessive for utilization in this particular case under what I find to be very unusual circumstances,” Lovell said. “While it is true that the law was violated and while it is true that the computation set forward by the U.S. Probation Office complies with the guidelines in an ordinary case, this is not an ordinary case as to each of the three defendants.”...

Still, the 12-month sentences to a federal penitentiary shook the courtroom, with mothers, wives and friends breaking into tears, sighs of “no” ringing out and men dropping their heads into their hands....

In 2004, 62 percent of Montana voters passed an initiative removing criminal penalties under Montana state law related to the medicinal use, possessing and cultivation of marijuana for qualifying patients and registered caregivers.

Few people registered with the state as patients or caregivers until 2009, when the “Ogden Memo” was issued to federal prosecutors by then U.S. Deputy Attorney General David Ogden.  Generally, it said prosecution of marijuana cases in states with medical marijuana laws should be low on the priority list.

But many people who read the memo thought it said the federal government wouldn’t prosecute medical marijuana cases, and the number of caregivers and patients skyrocketed in Montana. Leland, 28, and Burns, 40, formed Queen City Caregivers LLC and registered the business with the Secretary of State’s office.

The men maintained records regarding the eligible patients for which they could manufacture marijuana under the state law and even met with local law enforcement officials, who counted 749 plants growing at their nursery on Westhaven Road in Helena.

The officials determined that Burns and Leland were in compliance with state laws and didn’t issue any citations.   Meanwhile, Schultz, 38, opened Natural Medicine of Great Falls, which operated like a broker, buying and selling marijuana among caregivers.

“As (Schultz’s) character letters attest, he is a good family man and a productive member of the community,” defense attorney Michael Donahoe wrote on behalf of his client in court documents. “Absent the government’s publication of the Ogden Memo, there is no evidence to support the conclusion that (Schultz) would have engaged in the business of selling marijuana. “… And under the Ogden Memo it was more than reasonable for (Schultz) to assume that he would not be targeted for federal prosecution, so long as he was making a good faith effort to remain in compliance with Montana’s medical marijuana laws.”

But in March, the federal government carried out dozens of raids in Montana, including at the three men’s businesses.  They were arrested and jailed on about 25 charges each including manufacturing and distributing marijuana and money laundering.

In court Thursday, Assistant U.S. Attorney Joseph Thaggard reiterated that the Ogden Memo only spoke about prioritization of crimes, and federal prosecutors in Montana felt a need to corral the state’s exploding medical marijuana industry.  He added that the memo also said people wouldn’t be prosecuted when there was “clear and unambiguous compliance” with state law, and the three men didn’t fall into that category....

“The memo didn’t say sort of comply or try to comply or attempt to comply … and the use and distribution of medical marijuana is still against federal law,” Thaggard said. “So it’s a little disingenuous for these defendants to come forward saying they didn’t believe they would be fair game for prosecution.”

The court received dozens of letters from supporters of all three men, who noted that they were upstanding fathers, uncles and friends, as well as caring individuals who were only trying to help people who were ill.  Thaggard noted that while that may be true, the men also made quite a bit of money — around $1.3 million by the government’s accounting.

Burns, who also owns a construction business in Helena, pleaded guilty in September to growing marijuana and money laundering.  Leland pleaded guilty to manufacturing marijuana and Schultz pleaded guilty to distribution of marijuana. In exchange for the guilty pleas, the other charges were dropped Thursday and the defendants agreed not to appeal the sentences.

Leland and Burns each forfeited $454,666 in a bank account that was seized and Schultz paid the government $110,000 prior to the sentencing. He also forfeited a 2001 Mercedes Benz.  All three men were set free Thursday, but will have to report to federal prison as soon as they’re ordered to begin their sentences. After the release, Burns will be on supervised probation for three years and Leland and Schultz will be supervised for four years.

Beyond lots of other reactions to this prosecution and sentencing, I am uniquely disappointed to read that "the defendants agreed not to appeal the sentences."  I can think of a number of important constitutional and statutory arguments that might well be made (and that I surely wish would be made) to the Ninth Circuit in an effort to overturn the prosecutions and especially the prison sentences given to these three (upstanding?) Montana businessmen.  

Because federal prosecutors are (justifiably) afraid of what might happen on appeal of a case like this (both in terms of PR and in terms of a legal ruling), I guess I am not surprised to hear that the feds sought a waiver of appeal in the plea deal.  And, I have little doubt that the prosecutors were able to used the threat of an potentially applicable mandatory minimum sentence of five years to secure such a plea term.  I sincerely hope that, if the language of the appeal waiver has any limits, these defendants will consider trying to appeal at least their federal prison term (and I will here already offer to help on any such appeal to the Ninth Circuit pro bono).

December 16, 2011 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (39) | TrackBack

Thursday, December 15, 2011

Stacked 924(c) counts leads to another very long federal mandatory minimum sentence from Utah

This new piece from The Salt Lake Tribune, headlined "Reluctant Utah judge orders man to 57 years in prison for gang robberies," reports on another case involving stack gun mandatory minimums producing an extremely long federal mandatory minimum sentence. Here are the basics:

Kepa Maumau stared at the courtroom ceiling, fighting to keep his compsure as his father sobbed while giving the 24-year-old man a bear hug on Thursday. It would be the last chance for father and son to embrace after U.S. District Court Judge Tena Campbell ordered Maumau, a once promising running back with plans to play football at Weber State University, to spend 57 years in prison for committing three armed robberies on behalf of the Tongan Crip Gang.

A reluctant Campbell handed down the sentence, which is dictated by federal mandatory minimum guidelines associated with gun crimes.

Maumau’s sentencing in federal court was fourth completed for six members of TCG convicted by a jury in October for a variety of crimes dating back to 2002. The jury convicted Maumau of racketeering conspiracy, robbery, assault with a dangerous weapon and multiple counts of using or carrying a firearm during a violent crime.

Although Maumau’s federal charges marked the first time he’d ever been charged with a felony as an adult, he is subject to a mandatory 57 years for repeatedly using a gun during the robberies.Maumau’s defense attorney, Rebecca Skordas, said she plans to appeal the sentence and used the hearing as a chance to speak out against mandatory minimum sentences.

"This is absurd. It’s just not right," Skordas said. "We as a society have failed when we send a young man to prison for 57 years."

Campbell said the law gives her no alternatives in Maumau’s case. "I can’t change it," she said matter-of-factly.

This case may remind hard-core sentencing fans of another notable federal sentencing case from the same district, which the article goes on to discuss:

Kepa Maumau’s case isn’t the first where a mandatory minimums have come under fire. Earlier this year, the U.S. Supreme Court declined to hear the case of Utah music producer Weldon Angelos, who wanted the high court to throw out the 55-year prison sentence he received for drug and weapons crimes despite having no prior criminal record.  The decision ended appeal options for Angelos, 32 -- the founder of hip-hop label Extravagant Records -- who had unsuccessfully argued that his trial attorney mishandled plea negotiations during his court proceedings and that the sentence handed down was unfair.

Angelos sold marijuana to a police informant three times in May and June 2002, each time charging $350 for 8 ounces. He was indicted in federal court on one gun possession count, three counts of marijuana distribution and two lesser charges....

U.S. District Judge Paul Cassell sentenced Angelos to a minimum mandatory 55-year sentence: five years on the first weapons conviction and 25 years each for the next two counts, as required by law. Cassell, frustrated that his hands were tied by the mandatory guidelines, asked former President George Bush to commute the sentence, calling it "unjust, cruel and irrational."

Because I represented Weldon Angelos throughout his unsuccessful 2255 proceedings, I will not comment further on this matter except to note that I am not certain that Angelos is wholly without any more appeal options.

December 15, 2011 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (8) | TrackBack

Monday, December 12, 2011

Why the wasteful(?) Eighth Circuit affirmance of FSA pipeline sentence with Hill and Dorsey pending?

As regular readers know (and as reported here), last month the Supreme Court via cert grants in Hill and Dorsey took up the issue of whether the Fair Sentencing Act's reduce crack mandatory minimums apply to initial sentencings that take place after the statute’s effective date if the offense occurred before that date.  Because this circuit-splitting issue will now be resolve by the Supreme Court within a matter of months, I find notable and a bit worrisome this ruling today in US v. Duncan by an Eighth Circuit panel which affirms a "old" 5-year mandatory minimum term against a defense challenge that the new law should apply.

The ruling in Duncan notes the circuit split on this FSA application issue and the fact that the Supreme Court has taken up this matter, but it then affirms the sentence by noting existing circuit precedent that forecloses the defendant's argument that the reduced FSA mandatory minimum terms apply to this pipeline case.  But I cannot help but wonder why the Eighth Circuit did not simply hold on to this case awaiting guidance from SCOTUS rather than resolve it against the defendant and thereby require her to file a cert petition to keep the issue preserved.

I assume there are right now dozens, if not hundreds, of similar cases pending in the circuits courts that have rejected the FSA applicability in this situation, and I also assume that the most efficient (and arguably just) way to handle these cases right now is to just keep them on the circuit docket until the Supreme Court rules so that additional filings are not required by the parties until we get a SCOTUS decision.  The approach taken by the Eighth Circuit, however, will now require (1) a SCOTUS cert filing by the defendant, (2) consideration by the SG concerning any possible SCOTUS response, (3) a GVR by SCOTUS if it issues a ruling in Hill and Dorsey with any pro-defendant elements.  And, assuming the defendant in Duncan has a court appointed attorney (as do the vast majority of crack defendants) each one of these steps will be taking place entirely on the federal taxpayers' dime.

Given the size of the federal budget, the thousands of dollars that seem likely now to be wasted in this Duncan case is hardly going to be noticed.  But I still wonder what benefits might be gained by the Eighth Circuit's (too) quick disposition while this matter is pending before SCOTUS.  And I also wonder if (and hope that) other circuits are thinking through these matters before being too quick to resolve cases that seem likely to be back on their docket in only a matter of months.

December 12, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Monday, November 28, 2011

SCOTUS to review FSA pipeline issue via Dorsey and Hill grants

As indicated on this Supreme Court order list released this morning, the Justice have taken up a pair of cases, Hill v. United States11-5721, and Dorsey v. United States11-5683, to address the circuit split over whether the new Fair Sentencing Act new mandatory minimums for crack offenses apply to defendants who committed crimes but were not yet sentenced when the FSA became law.  Kudos to the Court and huzzah!

Regular readers know that I have be following this intricate "crack-cases-in-the-pipeline" sentencing issue closely for nearly two years (starting way back in March 2010 when the Senate passed its version of the FSA).  I have lots of thoughts on this matter, and I am already thinking about authoring an amicus brief in Hill and Dorsey to address some statutory construction canons that, in my view, have not been fully briefed in the lower courts.

Though I will have more on these cases in the weeks and months ahead, I sure hope for the sake of lots of defendants that lawyers have been effectively preserving this issue in cases that have been in the pipeline all this while.  This issue is now on track to be conclusively resolved by June, and perhaps even sooner (though not a moment too soon).

November 28, 2011 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, November 27, 2011

Noting the impact of three strikes on plea practices in California

This local article from California, headlined "The hidden impact of three strikes: State law is widely used to coerce plea bargains," does a very effective job spotlighting the relationship between a consequential state mandatory minimum sentencing provision and plea practices.  Here are excerpts:

Across California, hundreds of criminals convicted of non-serious, non-violent, non-sexual crimes last month were no longer sent to prison under the state's massive inmate realignment — but this group of "low level" offenders does not include more than 2,200 inmates currently imprisoned for the exact same crimes.  They are serving life sentences under California's three-strikes law.

It is this incongruity that again has inspired a reform effort aimed at requiring that an offender's third strike be a serious, violent offense.  "Most people don't realize a petty theft with priors is a third strike and can get you life in prison," said Salinas-based defense attorney Brian Worthington.

Men in Monterey County have been sentenced to 25 years to life for crimes ranging from petty theft to drug possession to second-degree burglary, the same offenses that now qualify others for county jail, probation and rehab programs.  A third strike doesn't have to be serious, violent or sexual. It can even be what criminal attorneys call a "wobbler" — a crime that's allowed to be prosecuted as either a misdemeanor or a felony.

In Monterey County, where the overall numbers are small, such relatively minor crimes have put more than 10 percent of the county's third-strikers in state prison for life.  Of the county's 41 third-strikers in state prison as of June, five are serving life terms for offenses that fall squarely under realignment's definition of non-serious, non-violent and non-sexual....

Worthington and other defense attorneys acknowledge that Monterey County prosecutors tend to reserve a third strike for serious, sexual or violent crimes.  But what third-strike conviction numbers don't reflect is how often the mere threat of applying the law — and therefore, a life sentence — is used to coerce plea agreements and prison time in low-level cases that otherwise could have ended with a few years' probation.

That, says Worthington, is the hidden impact of three strikes.  "I think people would also be surprised to know that you can get multiple strikes in one offense.  They think it's for someone who has a long, illustrious career (in crime).  But it could be one event with no prior record and it doesn't have to be their third or fourth time in front of a judge."...

Monterey County public defender Jim Egar calls three strikes "an overwhelming coercive tool.  It discourages innocent people from going to trial.  The risk of conviction and punishment causes people to plead guilty....  You have a situation that is ripe for unfair results.  Mistakes happen because people are afraid of the risk."

"I don't discount that they may feel leverage," said Monterey County District Attorney Dean Flippo, who has been "heavily involved in the political wars" over three strikes through the years.  Flippo said he and other district attorneys initially remained neutral when three strikes became law, but became supportive after they noted its popularity and saw that higher courts upheld it.  "We were concerned about the third strike being non-serious and non-violent. But it picked up steam, and we embraced it."...

Flippo acknowledges that in the early years there were some abuses, "the kind that would shock the conscience."  But within two years, judges were given the ability to dismiss a strike, in an act known as the Romero decision.  "The first reform was the Romero decision," Flippo said. "Three strikes gave us discretion to say 'You've had as many breaks as the community can give you.' If the judge disagrees with the prosecutor, he has the power to strike the strikes."

Unlike some district attorneys in California, Flippo has had a written three-strikes policy for years.  While it encourages prosecutors to file strikes whenever possible, the policy also allows them to dismiss strikes if there are "compelling" considerations, such as multiple strikes stemming from the same incident, if many years have passed since the strikes occurred, or if the defendant has had a crime-free record for 10 years.  Attorneys also can decline to file a strike if the new offense is possessing a small amount of drugs.

Still, Flippo doesn't hesitate to credit the law with lowered crime rates around the state. "Crime rates have been going down, down, down. I attribute it to harsher sentencing... along with mobilization of communities" toward prevention and intervention efforts.

Generally, there has been no agreement among criminologists about why crime rates continue to decline, and Worthington cited research that concludes just the opposite.  "You will not find any link between the harshness of the sentence and declining crime rates," he said.

November 27, 2011 in Mandatory minimum sentencing statutes, Offender Characteristics, Purposes of Punishment and Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (14) | TrackBack

Friday, November 18, 2011

"20 Years Later, Mandatory Minimum Sentences Are Still Mindlessly Draconian"

The title of this post is the headline of this new piece by Jacob Sullum over at Reason. Here are excerpts from an effective review of the US Sentencing Commission's recent report on federal mandatory minimums:

Twenty years ago, the U.S. Sentencing Commission issued a landmark report that highlighted the injustices caused by mandatory minimum penalties.  Since then several developments have helped mitigate those injustices. In 1994 Congress enacted a "safety valve" provision that allows low-risk, first-time offenders to escape mandatory minimums. In 2005 the U.S. Supreme Court held in U.S. v. Booker that the commission's sentencing guidelines (as opposed to mandatory minimums required by statute) should be treated as advisory because they hinged on facts that were not determined by a jury.  In 2007 the commission changed its guidelines to reduce recommended sentences for crack cocaine offenses. In 2010 Congress passed the Fair Sentencing Act, which shrank the senseless sentencing disparity between crack and cocaine powder.  Last month the commission issued a follow-up report on mandatory minimum sentences that reflects the improvements made by some of these changes but also shows that federal criminal penalties remain excessively harsh and rigid.

The report confirms that the safety valve, championed by Families Against Mandatory Minimums (FAMM), is having a significant impact.  In fiscal year 2010, drug offenders accounted for two-thirds of federal defendants convicted of offenses that carried mandatory minimums, but they qualified for shorter sentences about half the time. According to the report, "One-quarter (26.1%) of these offenders received relief through operation of the safety valve alone, 19.3 percent by providing substantial assistance to the government; and 9.0 percent through both the safety valve and substantial assistance provisions."...

Despite such modest progress, it's clear from the commission's report that federal sentences are still out of whack.  From interviews with prosecutors and defense attorneys, for example, "the Commission learned that inconsistencies in application of mandatory minimum penalties exist between districts, and often within districts, where individual prosecutors exercise their discretion differently.  In part, these differences may have developed to avoid the overly severe consequences that result from certain mandatory minimum penalties applying in individual cases."  In other words, prosecutors are exercising the discretion that once belonged to judges, effectively determining offenders' sentences by deciding how to charge them.

The commission also found that "mandatory minimum penalties for drug offenses sweep more broadly than Congress may have intended." The most common function among offenders subject to mandatory miniums was courier (23 percent), followed by wholesaler (21 percent), street-level dealer (17 percent), and high-level supplier/importer (11 percent). That breakdown suggests mandatory minimums continue to hit low-level offenders more often than "drug kingpins."

The irrationality is not confined to drug offenses. The share of federal sex offenders subject to mandatory minimums has risen dramatically in the last decade, from 5 percent in 2001 to 51 percent in 2010. And unlike drug offenders, they rarely qualify for lower sentences. Most sex offenders (72 percent in 2010) are charged with child pornography offenses, primarily (58 percent) possession only. The average sentence for child porn offenders subject to mandatory minimums is 11 years. "The Commission's preliminary review of the available sentencing data suggests that the mandatory minimum penalties for certain non-contact child pornography offenses may be excessively severe and as a result are being applied inconsistently," the report says.

Some recent related posts:

November 18, 2011 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, November 16, 2011

Fascinating CVRA and FSA issues seemingly ready for SCOTUS review

As I have mentioned before, John Elwood at SCOTUSblog does amazing work keeping up with the cases that the US Supreme Court is keeping in its midst for an unusually long time through his periodic posts labelled "Relist (and Hold) Watch."  And, in this latest installment, he notes sets of cases raising two issues that have gotten a lot of attention on this blog now perhaps finally groomed for SCOTUS review:

The Court relisted for the first time since calling for a response in Fisher v. U.S. District Court for the Northern District of Texas, 10-1518, which presents the question whether a crime victim seeking to enforce a right under the Crime Victims’ Rights Act is entitled to ordinary appellate review of a district court’s disposition of his claims, or only more limited mandamus review for clear and indisputable error.  The Court likely relisted Fisher to consider it together with Amy v. Monzel, 11-85, scheduled for the November 22 Conference.  In addition to the standard-of-review question also at issue in Fisher, Amy presents another question, and alleges another circuit split, about the role of proximate cause in restitution awards for victims of child pornography....

The Court also relisted in Davis v. United States, 11-5323, another in the group of petitions discussed last week that the Court is collecting for the November 22 Conference along with Hill v. United States, 11-5721, all addressing whether the Fair Sentencing Act (which reduced the crack-powder sentencing differential) applies in an initial sentencing proceeding that takes place on or after the statute’s effective date if the offense occurred before that date.  As noted last week, it seems all but certain the Court will grant cert. in one of these cases.

My SCOTUS sentencing cup will be running over if the Justices grant review on both these issues in the weeks ahead.  And, if the Court takes up these matters ASAP, what started as a pretty sleepy sentencing Term for the Court could quickly become one of the most interesting to watch in recent years.

November 16, 2011 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, November 14, 2011

NY Times editorial urges Congress to rescind all mandatory minimum sentences

I am pleased to see that this morning's New York Times includes this editorial discussing the US Sentencing Commissions's recent report on mandatory minimum sentences.   The piece is headlined "A Blue-Ribbon Indictment," and here are excerpts:

A 645-page report from the United States Sentencing Commission found that federal mandatory minimum sentences are often “excessively severe,” not “narrowly tailored to apply only to those offenders who warrant such punishment,” and not “applied consistently.”  That is especially so for sentences of people convicted of drug-trafficking offenses, who make up more than 75 percent of those given federal mandatory minimum sentences.

This is a powerful indictment from the commission, which has three Republicans and three Democrats and operates by consensus.  The report shows that harsh mandatory minimums have contributed to the near tripling of federal prisoners in the last 20 years, reaching 208,000 in 2009 and putting federal prisons 37 percent over capacity....

The racial disparities in sentencing are also stark.  In some cases, mandatory minimums can be reduced for offenders if the crime did not involve violence or a gun.  But most African-American drug offenders convicted of a crime carrying a mandatory minimum sentence could not meet these and other requirements: only 39 percent qualified for a reduction compared with 64 percent of whites.

The report notes that inequitable sentencing policies “may foster disrespect for and lack of confidence in the federal criminal justice system.”  Not “may.”  Given the well-documented unfairness, Congress needs to rescind all mandatory minimum sentences.

November 14, 2011 in Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3) | TrackBack

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