Monday, May 31, 2010

"Federal Sentencing at a Crossroads: A Call for Leadership"

The title of this post is the title of the terrific panel discussion put together last week by NYU's Center on the Administration of Criminal Law and the Federal Bar Council. The discussion was moderated by The Honorable John Gleeson, United States District Judge, United States District Court for the Eastern District of New York, and included as panelists:

The NYU Center has made the video of the event available via this link, and it describes the proceedings this way:

This program brought together leaders in sentencing policy to discuss various questions, including: Who is -- and who should be -- in charge of federal sentencing policy?  What changes are desirable, and how can change best be accomplished?  Why is change in favor of defendants so elusive, even in narrow contexts where prosecutors agree it is necessary? Should sentencing policy at the federal level be linked to its fiscal consequences, as it is in the states?  The program explored these and other questions in part through the window provided by recent developments related to nonviolent drug offenders, including pending legislation to reduce the disparity between federal sentences for crack cocaine and powder cocaine offenses.

May 31, 2010 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, May 29, 2010

Notable reactions from notable officials to the new Holder memo for federal prosecutors

This new post at The BLT, which is headlined "Holder Memo Calls for Flexibility in Charging, Sentencing," reports on the new memorandum from Attorney General Holder to all federal prosecutors concerning "Department Policy on Charging and Sentencing" which replaces older "Ashcroft" and "Comey" memos concerning how federal prosecutors are supposed to make basic charging, plea bargaining and sentencing decisions (basics here).  In addition to describing the memo (and the testimony from DOJ earlier this week at the Sentencing Commission's public hearing (basics here)), this post has these notable quotes from in-the-know folks about the memo's import:

Sentencing Commission Vice Chairman William Carr Jr. said the Holder memo “clearly” gives more flexibility to assistant U.S. attorneys.  In particular, Carr, a former federal prosecutor in Pennsylvania who retired in 2004, said the new guidance suggests there will be more flexibility to not argue for mandatory-minimum sentences....

Senate Judiciary Chairman Patrick Leahy (D-Vt.) released this statement Thursday afternoon on the Holder memo: “With this new policy, Attorney General Holder has taken a further step toward restoring the Justice Department’s commitment to enforcing the law aggressively, effectively, and fairly.  I applaud Attorney General Holder for his forward-thinking and common-sense update to the Justice Department’s policies on charging criminal cases, making plea deals, and seeking sentences.  This is a marked change in the policies implemented by the Bush Justice Department.  By emphasizing both the importance of consistency and the need to carefully consider the specific facts and circumstances of each case, Attorney General Holder ensures that the Department will strive to reach the most fair and appropriate result in each case.  His new policy gives prosecutors the flexibility they need to secure important plea deals and charge cases in the way best calculated to obtain convictions.”

Some recent related posts:

May 29, 2010 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, May 28, 2010

Some coverage of yesterday's US Sentencing Commission hearing

Through blog reports and press releases, one can cobble together a basic sense of the basic feel of the testimony and comments yesterday at the US Sentencing Commission's public hearing about mandatory minimum sentencing statutes and federal sentencing policy (background here; early report here).  Here are some links:

May 28, 2010 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, May 27, 2010

Nuanced and astute (and vague) testimony from DOJ at Sentencing Commission hearing on mandatory minimums

As detailed in this prior post, the United States Sentencing Commission today is conducting a public hearing in Washington DC "to gather testimony from invited witnesses regarding the issue of statutory mandatory minimum penalties in federal sentencing."  The agenda and a list of invited witnesses scheduled to testify today at the USSC can be found here, and this morning the bulk of the written testimony submitted by these witnesses are now linked through this agenda page.

Providing a "View from the Executive Branch" (namely the views of the current US Department of Justice) is Sally Quillian Yates, US Attorney for the Northern District of Georgia.  Her submitted written testimony is available at this link, and it is today's must-read for anyone and everyone still following post-Booker sentencing debates and curious about how the Obama Justice Department is staking out ground in these debates.  Just about every paragraph of the DOJ testimony coming from USA Sally Gates is interesting and important, and here are a few extended snippets that really caught my attention:

My testimony today is offered in the context of an ongoing study at the Department of Justice that began soon after Attorney General Holder took office.... The Sentencing and Corrections Working Group is conducting the most comprehensive review of federal sentencing and corrections in the Executive Branch since at least the passage of the Sentencing Reform Act....

The results of the Working Group are guiding the Department’s policies regarding sentencing.  To begin, the Administration has been working hard with Members of Congress to see the enactment this year of legislation to address the current disparity in sentencing between crack and powder cocaine offenses, including the existing 100-to-1 quantity ratio. In addition, last week, the Attorney General issued a new Department policy on charging and sentencing in a memorandum to all federal prosecutors.  This new policy recognizes the reality of post-Booker sentencing and the need for an appropriate balance of consistency and flexibility to maximize the crime-fighting impact of federal law enforcement.  We are also working on new ways to examine racial and ethnic disparities in sentencing beyond federal cocaine sentencing policy to determine if disparities are the result of race-neutral application of statutes and charging decisions and otherwise justified; and we are working on initiatives to promote more effective prisoner reentry.  These and other measures will be announced shortly....

The federal prison population, which was about 25,000 when the Sentencing Reform Act was enacted into law, is now over 210,000.  And it continues to grow.  Much of that growth is the result of long mandatory sentences for drug trafficking offenders.  While these and other mandatory sentences have been important factors in bringing down crime rates, we also believe there are real and significant excesses in terms of the imprisonment meted out for some offenders under existing mandatory sentencing laws, especially for some non-violent offenders. Moreover, the Federal Bureau of Prisons is now significantly overcapacity, which has real and detrimental consequences for the safety of prisoners and guards, effective prisoner reentry, and ultimately, public safety.

At the same time, since the Supreme Court’s decision in Booker, Sentencing Commission research and data – and the experience of our prosecutors – have shown increasing disparities in sentencing.  We are concerned by, and continue to evaluate, research and data that indicate sentencing practices (particularly those resulting in lengthier incarcerations) are correlated with the demographics of offenders.  Further, with more and more sentences becoming unhinged from the sentencing guidelines, undue leniency has become more common for certain offenders convicted of certain crime types.  For example, for some white collar offenses – including high loss white collar offenses – and some child exploitation offenses, sentences have become increasingly inconsistent.  The federal sentencing guidelines, which were originally intended to carry the force of law, no longer do. Thus, for these offenses for which there are no mandatory minimums, sentencing decisions have become largely unconstrained as a matter of law, except for the applicable statutory maximum penalty. Predictably, this has led to greater variation in sentencing. This in turn undermines the goals of sentencing to treat like offenders alike, eliminate unwarranted disparities in sentencing, and promote deterrence through predictability in sentencing.

Our study has led us to the conclusion that in an era of advisory guidelines, mandatory minimum sentencing statutes remain important to promote the goals of sentencing and public safety.  At the same time, we recognize that some reforms of existing mandatory minimum sentencing statutes are needed and that consideration of some new modest mandatory minimum sentencing statutes is appropriate....

In the past, the Sentencing Commission has taken the position that mandatory minimum sentencing statutes were not needed, in part because the sentencing guidelines were themselves mandatory.  This position was also put forward for many years by advocacy groups such as the American Bar Association and Families Against Mandatory Minimums as well as by federal public defenders. However, in our review of federal sentencing over the last year, we have found little support from these groups, in Congress, or the Federal Judiciary for reinstating the presumptive nature of the sentencing guidelines.  In the absence of such a change to the federal sentencing structure that might return presumptive sentencing guidelines (an overhaul that we are not now recommending), we believe that mandatory minimum sentencing statutes must go hand in hand with advisory sentencing guidelines.

May 27, 2010 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, May 24, 2010

SCOTUS in O'Brien preserves (for now) McMillan precedent (to Justice Stevens' chagrin)

Based on a quick review of all of today's SCOTUS action, the biggest news for hard-core sentencing fans seems to be the continued preservation of the McMillan/Harris mandatory minimum "exception" to Apprendi/Blakely Sixth Amendment rule by virtue of the Supreme Court's decision to decide the O'Brien case for the defendants on statutory grounds.  Justice Stevens, in what may serve as his last word on the Apprendi/Blakely Sixth Amendment jurisprudence make this final statement at the end of his notable separate (and solo) concurrence:

In my view, the simplest, and most correct, solution to the case before us would be to recognize that any fact mandating the imposition of a sentence more severe than a judge would otherwise have discretion to impose should be treated as an element of the offense. The unanimity of our decision today does not imply that McMillan is safe from a direct challenge to its foundation.

But the fact that nobody signed on to retiring Justice Stevens' separate opinion in the O'Brien case may, in fact,  imply that McMillan is going to remain safeguarded from a direct challenge to its foundation for perhaps a long time.

May 24, 2010 in Blakely Commentary and News, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, May 19, 2010

US Sentencing Commission announces big public hearing on mandatory minimums

As detailed via this little notice, the United States Sentencing Commission has scheduled a public hearing for all day next Thursday at the Thurgood Marshall Federal Judiciary Building in Washington, D.C. As the notice explains, the "purpose of the public hearing is for the Commission to gather testimony from invited witnesses regarding the issue of statutory mandatory minimum penalties in federal sentencing."  The list of invited witnesses scheduled to testify next week at the USSC can be found here, though who will testify on behalf of the United States Department of Justice is not indicated (and may not yet be known).

I suspect all the testimony at this hearing will be interesting, even though the positions likely to be taken by certain witnesses are obvious.  (For example, I fully expect that Julie Stewart, the President of Families Against Mandatory Minimums, will be testifying against the use of statutory mandatory minimum penalties in federal sentencing.)   But, except for coming out against crack/powder sentencing disparity, the Obama Justice Department has not yet had too much to say about mandatory minimums.  It will not be able to dodge taking at least some positions in this USSC hearing, and so everyone should stay tuned. 

This official press release from the USSC provides more backgrounds on this hearing and provides this explanation of how Congress has made it happen:

In October 2010 [sic; should be 2009], Congress directed the Commission to undertake a comprehensive review of these penalties as part of the Matthew Shepard and James Byrd Hate Crimes Prevention Act (Sec. 4713 of Pub. L. No. 111—84)....  [A] report is due to Congress no later than October 28, 2010.

Congress provided a detailed list of topics it expects the Commission to cover in its report, including –

  • assessing the effects of mandatory minimum sentencing on the goal of eliminating unwarranted sentencing disparity, the other goals of sentencing, and the federal prison population;
  • assessing the compatibility of mandatory minimum sentencing laws and the current federal guidelines system;
  • describing the interaction between mandatory minimum sentencing and plea agreements; and
  • discussing means other than mandatory minimums by which Congress can act in regard to sentencing policy.
The Commission expects that these topics, as well as other issues associated with federal statutory mandatory minimum penalties and the federal sentencing system, will be addressed during the hearing.

May 19, 2010 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, April 27, 2010

"FAMM Condemns Mandatory Life Sentence for NV Woman"

The title of this post is the heading of this new press release from the folks at Families Against Mandatory Minimums in response the the remarkable Nevada sentencing story discussed in this prior post.  Here is an excerpt from the press release:

According to published news reports, a jury convicted Ms. Taylor, 34, of lewdness with a minor under 14 for forcing a 13-year-old boy to touch her breast through her clothing and soliciting him for sex.  Conviction for lewdness with a minor under 14 carries a mandatory life sentence in Nevada with parole eligibility after 10 years.

"Based on what we've learned so far, we believe the life sentence handed to Ms. Taylor is a total travesty of justice," said Julie Stewart, FAMM founder and president.  "FAMM does not condone criminal behavior, especially where a minor is the victim, but no reasonable person can believe that the punishment fits the crime in this case.  Life sentences are usually reserved for murderers and repeat violent offenders."

"FAMM opposes mandatory minimum sentencing laws that carry disproportionate one-size-fits-all sentences and enormously expensive penalties.  Keeping Ms. Taylor in jail for the rest of her life could cost Nevada taxpayers well over $1 million.  This seems like a terrible waste of a life, and limited taxpayer resources," concluded Stewart.

April 27, 2010 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Monday, April 26, 2010

House bill to create "National Criminal Justice Commission" to be rolled out tomorrow

This new press release from the office of Representative Bill Delahunt (D-MA) reports on a notable legislative development to be formally annouced at a press conference tomorrow. Here are the details:

U.S. Reps Bill Delahunt (D-MA), Darrell Issa (R-CA), Marcia Fudge (D-OH), and Tom Rooney (R-FL) will hold a press conference on Tuesday April 27, 2010 at 11:30AM in Room 2255 of the Rayburn House Office Building to announce the introduction of the National Criminal Justice Commission Act of 2010.

The National Criminal Justice Commission Act of 2010, was introduced in the Senate as S. 714 by Senators Jim Webb. The bill has received widespread bipartisan support and has 37 cosponsors in the Senate, including Chairman of the Senate Judiciary Committee Senator Patrick Leahy (D-VT), Chairman of the Subcommittee on Crime and Drugs Senator Arlen Specter (D-PA) and Ranking Member Senator Lindsey Graham (R-SC), and Judiciary Committee member Senator Orrin G Hatch (R-U).

It will create a blue-ribbon bipartisan commission charged with undertaking an 18-month comprehensive review of the Nation’s criminal justice system.  The Commission will study all areas of the criminal justice system, including federal, state, local and tribal governments’ criminal justice costs, practices, and policies.  After conducting the review, the Commission will make recommendations for changes in, or continuation of oversight, policies, practices, and laws designed to prevent, deter, and reduce crime and violence, improve cost-effectiveness, and ensure the interests of justice.  The bill has been endorsed by approximately 100 organizations.

A copy of the bill will be available at the press conference.

I think much good could come from having a new "blue-ribbon bipartisan commission charged with undertaking an 18-month comprehensive review of the Nation’s criminal justice system," especially if this National Criminal Justice Commission is effectively staffed and funded.  But I am fearful that the creation of a new study commission, who won't issue recommendations until probably 2012 or beyond, could become a distraction from the critical important federal criminal justice reform work that could and should be getting done right now.

Indeed, this very press release has me wondering (again!) about the status of crack/powder sentencing reform in the House.  It has now been more six weeks since the full US Senate unanimously approved legislation to reduce (but not eliminate) the notorious 100:1 ratio in the amount of powder cocaine versus crack cocaine that trigger statutory mandatory minimum sentences.  I had heard rumors that similar compromise legislation might get through the House in April, but these rumors now seem unlikely to become a reality. 

In light of this background, I am not especially excited by House members getting all excited about the introduction of the National Criminal Justice Commission Act of 2010.  I do not think this development is itself a reason for criticism, but it does remind me of how important it is for those interested in serious criminal justice reform to keep their eyes on the prize.

Some related recent and older posts:

April 26, 2010 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New USSC crack guidelines and report, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Friday, April 23, 2010

Questionable(?) DC Circuit ruling on safety-valve burden of proof

The DC Circuit has a very intriguing little opinion this morning in US v. Gales, No. 08-3040 (DC Cir. Apr. 23, 2010) (available here), concerning burdens of proof and eligibility for statutory safety valve relief from an applicable mandatory minimum sentencing term.  At issue in Gales is whether the defendant satisfied the safety valve requirement to truthfully provide all information about his offense: the defendant claimed he did, prosecutors claimed he did not.  After saying it was not clear error for the district court to not believe the defendant, the DC Circuit has to respond to these claim by the defendant about the applicable burdens of proof:

Gales contends that the district court “misunderstood and misapplied” the burden of proof under the safety valve provision, claiming that after the government expressed its doubts to the district court about Gales’ story concerning his drug supplier, the district court shifted the burden of proof to Gales to prove that he had not lied.  Gales argues that such an “impossibly high burden” is not imposed by the law.  Instead he claims that once he made a credible showing that his story was truthful and complete, it was the government’s burden to present evidence showing otherwise....

Gales [further] contends that when the district court stated that the way the safety valve works is for Gales to give the government “the answer they want,” the court was giving the government the same discretion it has pursuant to the Sentencing Guidelines’ substantial assistance provision, U.S.S.G. § 5K1.1.  That is, the district court was allowing the government to prevent him from receiving relief under the safety valve.  According to Gales, this was not Congress’ intent.

Relying on the Circuit's (pre-Blakely) precedent, the panel in Galesrejects the contention that there is any problem with placing the burden on the defendant to establish "his story was truthful and complete."  In other words, the defendant here gets subject to a 5-year mandatory minimum especially because he could not satisfy his burden of proving that "his story was truthful and complete."  

As my quick reference to Blakely above is meant to suggest, there could be possible constitutional arguement (based in the Fifth Amendment more than the Sixth Amendment) against an interpretation of a statutory scheme that functionally increases the defendant's sentence because he fails to prove his admissions of guilt were truthful and complete.  More fundamentally, I think constitutional doubt and rule of lenity statutory construction principles suggest, at least to me, that the proof burden should be on the government in this kind of setting.

April 23, 2010 in Blakely Commentary and News, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (4) | TrackBack

Thursday, April 22, 2010

"Sanford backs plan to put fewer non-violent offenders in prison"

The title of this post is the headline of this new article concerning proposed prison reforms in South Carolina.  Here are the particulars:

Gov. Mark Sanford formally threw his support behind a far-reaching sentencing reform bill Wednesday, a bill that supporters say will reduce the number of non-violent offenders in prison and save the state millions of dollars. "You can only squeeze so much blood from a turnip," Sanford said. "This really is a taxpayer issue."

The 94-page bill is expected to reduce the state's projected prison population enough to negate the need for a new prison -- saving more than $400 million over five years. It's designed to increase training for nonviolent offenders to re-enter society without becoming repeat offenders. And it defines a laundry list of crimes as "violent," including many sex crimes against children.

It also provides, for example, a tiered approach to assault and battery crimes. Currently, the state has 90-day maximum sentences and 10-year minimum sentences and nothing in between, said state Sen. Chip Campsen, R-Charleston.

And it provides a sentence of up to $10,000 and up to 20 years in prison for habitual offenders convicted of driving under suspension resulting in death -- and a fine of up to $5,000 and 10 years in prison in such cases where great bodily injury results. A version of that provision, rolled into the bill last month, has been championed by Spartanburg resident Lily Lenderman for eight years -- ever since she lost her grandson in a wreck caused by someone driving under a suspended license.

"The whole idea about any criminal law is to keep us safe," said Rep. Keith Kelly, R-Woodruff, chairman of the House Criminal Law Subcommittee. "This bill ... is strong by keeping the violent offenders segregated from South Carolina families. At the same time, it's smart, because it's taking non-violent offenders out of the Department of Corrections and puts them on alternative sentencing -- GPS monitoring, for instance, that they pay for, not you or me."...

Corrections Department Director Jon Ozmint said the Sanford administration had been behind sentencing reform since a scaled-down version of it failed seven years ago.  Ozmint said South Carolina currently doesn't have a criminal justice system; rather, it has a patchwork of laws that have been cobbled together over the years.  He and several supporters talked about this bill being ruled by statistics rather than emotions.  "Don't underestimate that first step in this state's history," he said.

April 22, 2010 in Mandatory minimum sentencing statutes, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (9) | TrackBack

Monday, April 19, 2010

What's the status of crack/powder sentencing reform in the House?

As detailed in this post, just over a month ago the full US Senate unanimously approved legislation to reduce (but not eliminate) the notorious 100:1 ratio in the amount of powder cocaine versus crack cocaine that trigger statutory mandatory minimum sentences.  This compromise legislation as passed by the Senate cuts the ratio to roughly 18:1, and it does so by keeping powder sentences the same and by essentially reducing the severity of the mandatory minimums for crack offenses. 

As I have noted in prior posts, most advocates for crack/powder sentencing reform view this Senate compromise as an improvement over the status quo, but a lot less than was sought/hoped by reform advocates.  Consequently, as I flagged in this follow-up post, the next big question was whether the House will adopt this compromise so that it can become law.  Now, a full month later, we are still awaiting news on this critical question.

I have heard rumors from various sources that the House was likely to go along with the Senate compromise, and that this might get done in April.  But I have yet to hear any official word on this front, and I am wondering if (and worrying about) inertia and competing priorities might be preventing the House from getting this done. 

Helpfully, as we await further legislative developments, the folks at FAMM have a new FAQ (frequently asked questions) about pending federal legislation to reform crack cocaine laws at this link.  The FAQ includes a detailed response to this notable and challenging question: "If a person is in jail and has not been sentenced yet, should he postpone sentencing until a crack reform bill becomes a law?".

Some related recent posts:

April 19, 2010 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, April 13, 2010

Maine Supreme Judicial Court upholds application of mandatory minimum sentencing term for repeat drunk driver

As detailed in this AP story, which is headlined "Maine Court Upholds Minimum Sentence Of Tina's Law," the Maine Supreme Judicial Court unanimously ruled today that the "minimum sentences mandated under Tina's Law, which aims to crack down on dangerous drivers by imposing stiff sentences, are constitutional."  The ruling in Maine v. Gilman, No. 2010 ME 35 (Maine  Apr. 13, 2010) (available here), gets started this way:

The State of Maine appeals from a judgment of the Superior Court (Franklin County, Murphy, J.) denying its motion to correct the sentence that the court imposed on Gerald W. Gilman following his conviction at a bench trial for operating after habitual offender revocation....  The State contends that the court imposed an illegal sentence when it sentenced Gilman to less than the minimum mandatory two-year term of imprisonment required by the statute.  The court did so after finding that the statute as applied to Gilman violated article I, section 9 of the Maine Constitution, which requires that “all penalties and punishments shall be proportioned to the offense.” Me. Const. art. I, § 9.

Gilman cross-appeals, contending that, in addition to violating article I, section 9 of the Maine Constitution, the mandatory sentencing provision also violated his equal protection and due process rights....

Because we agree with the State’s contention that the sentence imposed on Gilman was illegal, and find no violation of Gilman’s constitutional rights, we vacate only the sentence and remand for resentencing.

April 13, 2010 in Mandatory minimum sentencing statutes, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Wednesday, April 07, 2010

Potent new district court opinion assailing mandatory minimum sentencing

Thanks to this post at the Second Circuit Sentencing Blog, I just learned about the potent opinion issued last week by US District Judge John Gleeson in United States v. Vasquez, No. 09-CR-259 (E.D.N.Y. March 30, 2010) (available for download below).  The opinion is a must-read for various reasons, as these opening and closing paragraphs suggest:

When people think about miscarriages of justice, they generally think big, especially in this era of DNA exonerations, in which wholly innocent people have been released from jail in significant numbers after long periods in prison.  As disturbing as those case are, the truth is that most of the time miscarriages of justice occur in small doses, in cases involving guilty defendants.  This makes them easier to overlook.  But when they are multiplied by the thousands of cases in which they occur, they have a greater impact on our criminal justice system than the cases you read about in the newspapers or hear about on 60 Minutes.  This case is a good example....

As a result of the decision to insist on the five-year mandatory minimum, there was no judging going on at Vasquez’s sentencing. Though in theory I could have considered a sentence of greater than 60 months, even the prosecutor recognized how ludicrous that would be, and asked for a 60-month sentence.  But the prosecutor’s refusal to permit consideration of a lesser sentence ended the matter, rendering irrelevant all the other factors that should have been considered to arrive at a just sentence.  The defendant’s difficult childhood and lifelong struggle with mental illness were out of bounds, as were the circumstances giving rise to his minor role in his brother’s drug business (i.e., it was to support an addiction, not to become a narcotics entrepreneur with a proprietary stake in the drugs), the fact that he tried to cooperate but was not involved enough in the drug trade to be of assistance, the effect of his incarceration on his three-year-old daughter and the eight-year-old child of Caraballo he is raising as his own, the fact that he has been a good father to them for nearly five years, the fact that his prior convictions all arose out of his ex-wife’s refusal to permit him to see their three children.  Sentencing is not a science, and I don’t pretend to be better than anyone else at assimilating these and the numerous other factors, both aggravating and mitigating, that legitimately bear on an appropriate sentence.  But I try my best to do just that, and by doing so to do justice for the individual before me and for our community.  In this case, those efforts would have resulted in a prison term of 24 months, followed by a five-year period of supervision with conditions including both other forms of punishment (home detention and community service) and efforts to assist Vasquez with the mental health, substance abuse, and anger management problems that have plagued him, in some respects for his entire life.  If he had failed to avail himself of those efforts, or if, for example, he intentionally had contact with Melendez without the prior authorization of his supervising probation officer, he would have gone back to jail on this case.

The mandatory minimum sentence in this case supplanted any effort to do justice, leaving in its place the heavy wooden club that was explicitly meant only for mid-level managers of drug operations.  The absence of fit between the crude method of punishment and the particular set of circumstances before me was conspicuous; when I imposed sentence on the weak and sobbing Vasquez on March 5, everyone present, including the prosecutor, could feel the injustice.

In sum, though I am obligated by law to provide a statement of "reasons" for each sentence I impose, in this case there was but one: I was forced by a law that should not have been invoked to impose a five-year prison term.

Download Vasquez opinion by Judge Gleeson

April 7, 2010 in Mandatory minimum sentencing statutes, Offender Characteristics, Who Sentences? | Permalink | Comments (28) | TrackBack

Tuesday, March 23, 2010

Different editorial perspectives on crack reform compromise

Anyone inclined to conclude and lament that the ("left-wing") media always see issues the same way should be sure to check out the distinct editorials from the New York Times and the Washington Post concerning last week's compromise bill passed by the Senate to cut the quantity ratio of powder to crack triggering statutory mandatory minimums to roughly 18:1 (basics here and here):

Key quote: "The [Senate] standard is still irrational, if significantly less so than current law. It’s imperative for the House to fight for the 1-to-1 ratio when it takes up the issue. Otherwise, the law will remain tinged with racism even if relative harshness is cut back."

Key quote: "[Crack/powder] parity ignores important if not huge differences between the two forms of the drug, including a slightly higher risk of addiction with crack, as well as a faster rate of physical deterioration users experience. This approach has also been politically untenable and unlikely to attract needed Republican support to move the bill quickly -- an important factor that House members should keep in mind when taking up the measure. The Senate on Wednesday unanimously passed a smart and strong compromise that the House should embrace."

March 23, 2010 in Drug Offense Sentencing, Mandatory minimum sentencing statutes | Permalink | Comments (0) | TrackBack

Thursday, March 18, 2010

Will and should House adopt the crack/powder reform compromise passed by Senate?

As detailed in this post, late yesterday the full US Senate unanimously approved legislation to reduce (but not eliminate) the notorious 100:1 ratio in the amount of powder cocaine versus crack cocaine that trigger statutory mandatory minimum sentences.  This compromise legislation as passed by the Senate cuts the ratio to roughly 18:1 and does so by keeping powder sentences the same and essentially reducing the severity of the mandatory minimums for crack offenses.  As I have noted in prior posts, most advocates for crack/powder sentencing reform view this Senate compromise as an improvement over the status quo, but a lot less than was sought/hoped by reform advocates.

The next big question, then, is whether the House will adopt this compromise so that it can become law (and, relatedly, whether the most vocal advocates for more significant reform will urge the House to adopt or reject this Senate passed reform).  Thought I can make lots of strong arguments for why the House should not be content with what has passed in the Senate, I also think that getting even some little reform done ASAP is now a lot more important than getting the best possible reform. 

In short, to answer the normative question in the title of this post, I think the House should adopt the crack/powder reform compromise in the exact form that was passed by Senate yesterday.  (I reach this view in part because, as I will explain in future posts, the US Sentencing Commission could and should "enhance" the impact of this reform through subsequent guideline amendments.)  But I am not sure if the House will, or if others agree that the (less-than) half-a-loaf crack fix passed by the Senate is good enough for now.

March 18, 2010 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New USSC crack guidelines and report, Race, Class, and Gender, Who Sentences? | Permalink | Comments (13) | TrackBack

Full Senate passes bill to reduce (but not eliminate) crack/powder disparity

As detailed in this AFP report, the full "US Senate Wednesday unanimously approved legislation to reduce 20-year-old sentencing disparities for offenders caught with crack cocaine versus the drug in its powder form."  Here are more of the basics:

The bill, which must still pass the House of Representatives before President Barack Obama can sign it into law, cuts the 100:1 ratio in the amount of powder cocaine versus crack cocaine that trigger the same sentence.

The legislation as introduced would have cut the ratio to 1:1, but dealmaking to ensure its passage resulted in a compromise ratio of 18:1.

This statement from FAMM President Julie Stewart provides more of the (compromise) story and explains why even those eager to see more done on this front are still likely to favor final passage of this (partial) sentencing reform:

After 24 years on the books, 15 years of trying, 7 Congresses, 10 hearings, three Sentencing Commission reports, and 75,000 defendants, the U.S. Senate voted -- unanimously -- to make crack cocaine penalties fairer....

If the bill that left the Senate on its way to the House today becomes law, it will take 28 grams of crack cocaine to trigger the five-year sentence and 280 grams to hit the 10-year penalty.  And people sentenced for simple possession of crack cocaine will no longer be subject to a five-year mandatory minimum.

This is a big improvement over current crack sentencing penalties. It could lower sentences for almost 3,000 people each year.  However, the bill is not retroactive and would not help anyone who is already in prison serving a crack cocaine sentence.  So, after working on this issue for almost as long as FAMM has been in existence, I'm not thrilled that this is all we got....

[G]iven the politics of the day (and the past 15 years) the Senate bill is likely to be the best we can get.  To their credit, there were a number of Democrats and Republicans who supported an even better version of this bill, but not enough.  It was clear that nothing short of this compromise would actually make it out of the Senate. Without a Senate bill, crack sentencing reform would be dead once again.

The bill now goes to the U.S. House of Representatives where it will meet some obstacles.  But because the Senate unanimously approved the bill, it increases its chances that it might make it out of the House.  We'll be working closely with House members to see if we can improve the bill....

Since 1995, when Congress killed the reform of the crack sentencing guidelines, nearly 75,000 people have received federal crack cocaine sentences.  We will not allow another 75,000 to be sentenced at the current unjustifiable levels.

To prevent that, however, we will accept some compromises that are hard to swallow.  I don't look forward to that, but I won't let the perfect be the enemy of the good.  Too many people have already suffered, which is why we will support this imperfect bill.

Some related recent posts:

March 18, 2010 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Weblogs, Who Sentences? | Permalink | Comments (16) | TrackBack

Monday, March 15, 2010

Reviewing the latest ACCA ruling from SCOTUS

The Florida Times-Union has this effective article discussing the Supreme Court's recent ruling in the Johnson ACCA case (basics here). The piece is headlined "U.S. Supreme Court tosses career criminal sentence in Jacksonville case: High court puts shackles on career criminal guidelines," and here is how it starts:

A U.S. Supreme Court ruling this month in a Jacksonville man's case will force federal courts to use more scrutiny before imposing mandatory sentences for so-called armed career criminals, legal observers say.

The court ruled March 2 that Florida's simple battery law is not a violent crime federal prosecutors can use to enhance sentences for gun criminals.  The federal Armed Career Criminal Act calls for a mandatory 15-year sentence for anyone convicted of a gun crime who has at least three prior violent felonies.

For Curtis Darnell Johnson, who pleaded guilty in 2007 to unlawfully transporting firearms, the opinion means his current 15-year sentence will be reduced.  Prosecutors had used a 2002 battery conviction as one of the underlying crimes to charge him as an armed career criminal.  But Justice Antonin Scalia, writing for a 7-2 majority, said Florida's battery statute doesn't constitute a violent felony because physical force isn't an element of the crime.

Johnson, 41, now faces a 10-year maximum and just two to three years under federal sentencing guidelines, said Assistant Federal Defender Lisa Call of Jacksonville, who argued the case in Washington in October.

The article goes on to explain why it is unlikely that all too many other cases are sure to be directly impacted by the Justices' work in Johnson.  But the amazing reality that Curtis Darnell Johnson is now only facing about 2-3 years under the guidelines rather than being subject to a 15-year mandatory minimum under the Armed Career Criminal Act highlights the dramatic impact of this ruling for at least one defendant.

March 15, 2010 in Mandatory minimum sentencing statutes, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, March 11, 2010

Varied reactions to the crack/powder reform work of the Senate Judiciary Committee

I have seen or received lots of distinct commentary in reaction to Senate Judiciary Committee's unanimous vote today to reduce (but not eliminate) crack/powder disparity in federal mandatory sentencing statutes (reported here).  Here is a sampling:

From the Office of Senator Jeff Sessions, here is part of this press release titled "Sessions, Hatch Commend Bipartisan Compromise on Drug Sentencing":

U.S. Senator Jeff Sessions (R-AL), Ranking Member of the Senate Judiciary Committee, today joined with Sen. Orrin Hatch (R-UT) in commending the unanimous committee approval of a bipartisan compromise bill to address the disparity in the sentencing penalties between crack and powder cocaine...

Sessions said, “This is an important bipartisan compromise and I especially want to thank Chairman Leahy, Senator Hatch, and Senator Durbin for their efforts. I have long believed that we need to bring greater balance and fairness to our drug sentencing laws. But I have also maintained that a guiding principle of that effort must be that we not place any obstacles in front of the police officers and prosecutors fighting every day to keep our communities and their residents safe. Through this change in the thresholds for mandatory minimum sentences, we will be able to achieve needed fairness without impeding our ability to combat drug violence and protect victims. These reforms strengthen our justice system and I hope the full Senate will consider and act on this proposal.”

From the US Department of Justice, here is the full text of this statement from Attorney General Eric Holder:

"There is no law enforcement or sentencing rationale for the current disparity between crack and cocaine powder offenses, and I have strongly supported eliminating it to ensure our sentencing laws are tough, predictable and fair.

"The bill voted unanimously out of the Senate Judiciary Committee today makes progress toward achieving a more just sentencing policy while maintaining the necessary law enforcement tools to appropriately punish violent and dangerous drug traffickers.

"I applaud the work of the Senate Judiciary Committee, particularly Chairman Leahy, Ranking Member Sessions and Senators Durbin and Graham, in taking such an important step toward reforming our sentencing laws. I look forward to the Senate and the House approving this legislation quickly so that it can be signed into law."

From the blog TalkLeft, here is part of this postfrom Jeralyn titled "Judiciary Committee Waters Down Crack-Powder Cocaine Sentencing Bill":

The 100:1 ratio and mandatory minimum sentences will not be eliminated, but reduced to 20:1. In other words, no equalization. Crack cocaine will continue to carry a penalty 20 times more severe than powder cocaine. Is it an improvement? Yes. Is it good enough? No....

There's more bad stuff in the bill as introduced -- it reeks of Joe Biden-type influences -- increased sentencing guidelines for some drug crimes through application of aggravating factors.

The bill we needed was Bobby Scott's H.R. 3245 which passed the House Judiciary Committee in July. It would have eliminated the "100 to 1" disparity by removing the word "crack cocaine" in the criminal code.

Instead, we get another crime bill with increased penalties and no equalization. Again, while the reduction is an improvement, the bill is a big disappointment.

And last but not least, from lawyer Gary G. Becker, who sent me this passionate e-mail not long after hearing the news:

The Senate Judiciary Committee’s vote to “reduce” the crack cocaine/powder cocaine punishment disparity from 100:1 to 20:1 is a scandalous, racist, and politically motivated act.  In view of the near-unanimous consensus that there is no justifiable basis for punishing crack cocaine more harshly than powder cocaine, and that the 100:1 ratio was both arbitrary and irrational – even DOJ called for elimination of the disparity -- the Senate Judiciary Committee settles on an equally unsupportable, irrational, and arbitrary punishment scheme, one that will disproportionately affect minorities, destroy families, and promote disrespect for the law.

March 11, 2010 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New USSC crack guidelines and report, Race, Class, and Gender, Who Sentences? | Permalink | Comments (9) | TrackBack

Unanimous(!!) vote by Senate Judiciary Committee to reduce (but not eliminate) crack/powder disparity

As detailed in this new press release from Families Against Mandatory Minimums, this morning "the U.S. Senate Judiciary Committee unanimously passed a bill that would reduce the sentencing disparity between federal crack and powder cocaine offenses."   Here are the basic details, with a pitch-perfect first-cut reaction from the head of FAMM:

The bipartisan vote to approve an amended version of Senator Richard Durbin’s (D-Ill.) bill, S. 1789, acknowledging that disparate sentencing policies enacted for federal crack cocaine offenses in 1986 have had a negative impact on the nation’s criminal justice system.

The amended bill would reduce the ratio between crack and powder cocaine from 100:1 to 20:1 and direct the U.S. Sentencing Commission to enhance penalties for aggravating factors like violence or bribery of a law enforcement officer. Significantly, the bill also would eliminate the mandatory minimum sentence for simple possession of crack.

“This is an exciting vote, but also disappointing.  We hoped the Committee would go further in making crack penalties the same as powder.  There was no scientific basis for the 100:1 disparity between crack and powder cocaine created 24 years ago, and there is no scientific basis for today’s vote of 20:1 ,” said FAMM President Julie Stewart. “However, if this imperfect bill becomes law, it will provide some long-overdue relief to thousands of defendants sentenced each year.

With regard to the bill’s provision that would eliminate the mandatory sentence for simple possession of crack, Ms. Stewart stated, “If enacted, this legislation would repeal a mandatory minimum law for the first time since the Nixon administration.”

Under the Senate’s proposed 20:1 ratio, a conviction for 28 grams of crack cocaine will trigger a five year prison sentence and for 280 grams of crack a 10 year sentence. The 20:1 ratio could affect an estimated 3,100 cases annually, reducing sentences by an average of about 30 months. The bill would not, however, reduce sentences for those currently incarcerated for crack offenses. Impact of the amendment’s other provisions has not yet been calculated.

Especially at a time when getting agreement on anything in Washington DC seems like a pipe-dream, the fact that the Senate Judiciary Committee voted unanimously to reduce crack sentences is a remarkable and very important development (and turning point?) in the ever dynamic story of modern federal sentencing. 

Especially given that the full Senate and the House still has to accept this imperfect "solution" to the crack/powder problem, I am not yet prepared to count any sentencing reform chickens.  But the fact the unanimous vote suggests that lots of important folks have already bought into this particular solution.  Thus, I think there is now a real chance that 2010 will finally be the year we get some change to the notorious 100:1 ratio in crack/powder mandatory minimums.

March 11, 2010 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, March 03, 2010

NY Times editorial advocates (long overdue) federal crack sentencing reform

This morning's New York Times has this new editorial about crack sentencing reform headlined "Bad Science and Bad Policy."  Here are excerpts:

The federal law that mandates harsher prison terms for people arrested with crack cocaine than for those caught with cocaine powder is scientifically and morally indefensible.  Bills to end the disparity are pending in both the House and Senate.  Democrats who worry about being pegged as “soft on crime” will have to find their backbones and push the legislation through....

The United States Sentencing Commission, which sets guidelines for the federal courts, found several years ago that more than 80 percent of those imprisoned for crack offenses were black.

The tough sentencing guidelines also drive drug policy in the wrong direction — imprisoning addicts for years when they could be more cheaply and effectively treated in community-based programs.  An analysis by Senator Richard Durbin, a Democrat of Illinois, estimates that ending the sentencing disparity could save the country more than a half-a-billion dollars in prison costs over the next 15 years.

In the House, a bill that ends the disparity has been voted out of committee but has yet to go to the floor.  The Senate bill is having trouble attracting support, including from Democrats.  It is time to finally put aside crack myths and hysteria.  This isn’t a question of being soft on crime. It is an issue of fairness and sound public policy.

March 3, 2010 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (10) | TrackBack

Tuesday, March 02, 2010

SCOTUS further restricts the reach of ACCA mandatory minimums in Johnson

Justice Antonin Scalia has proved once again that he is the friend of federal criminal defendants through his opinion for the Court today ruling in such a defendant's favor in Johnson v. United States.  Here is a brief account of the ruling via SCOTUSblog:

Johnson v. United States (08-6925), the Court rules 7-2 that a “violent felony” under federal law requires the use of physical violence, thereby reversing and remanding the lower court.  Justice Scalia writes for the majority, while Justice Alito dissents, joined by Justice Thomas.  The full opinion in pdf format is here.

Because I am on the road and then teach this afternoon, I may not have a chance to fully process and comments on this ruling until late tonight. In the meantime, I hope informed readers might comment on whether they think Johnson is a big deal or just another little (pro-defendant) tweak of the federal Armed Career Criminal Act.

March 2, 2010 in Mandatory minimum sentencing statutes, Offender Characteristics, Who Sentences? | Permalink | Comments (22) | TrackBack

Wednesday, February 24, 2010

Oral argument transcript finally available for in O'Brien/Burgess case

I am pleased to finally be able to report that the Supreme Court now has posted here the transcript for Tuesday morning's oral argument in United States v. O'Brien and Burgess, the combined cases concerning the application of the machine-gun mandatory minimum sentencing enhancement of 18 U.S.C. § 924(c).  I have heard from multiple source that Blakely fans will want to give this a close read, and that's my plan as I jump on a plane this afternoon to head to Miami (more on that later).  I hope to have comments on the argument in a future post, but I hope readers do not wait for me to opine on this argument's merits (or demerits).

Some recent related posts:

February 24, 2010 in Blakely Commentary and News, Blakely in the Supreme Court, Mandatory minimum sentencing statutes | Permalink | Comments (7) | TrackBack

Monday, February 22, 2010

Might the Harris limit on Apprendi be questioned in O'Brien/Burgess argument?

As detailed in this post at SCOTUSblog, on Tuesday morning the Supreme Court will hear oral argument in United States v. O'Brien and Burgess, a combined pair of cases concerning the application of the machine-gun mandatory minimum sentencing enhancement of 18 U.S.C. § 924(c).  As regular readers may recall from posts here and here back when cert was granted in these cases, the Apprendi Sixth Amendment line of cases (and especially the Harris mandatory minimum exception) may be in play and at issue in these case.

After reviewing the merits briefs in O'Brien and Burgess (which are available here thanks to the ABA), my gut tells me that the Justices will be drawn to ruling for the defendants on statutory interpretation grounds, which will allow the Court to dodge all the tough constitutional questions that a ruling for the government could present.  But my gut instinct about a lot of SCOTUS sentencing issues is rarely spot-on, and I suspect that the validity of Harris might come up during Tuesday's oral argument even if the majority of Justices are inclined to resolve O'Brien and Burgess on statutory interpretation grounds.

For those eager to gear up for the O'Brien and Burgess argument by giving thought to the possibility of overruling the Harris mandatory minimum exception to the Apprendi Sixth Amendment rule, I recommend the amicus brief filed by NYU Center for the Administration of Criminal Law (with which I helped a bit). That brief makes a serious argument for now doing away with Harris mandatory minimum exception to the application of the Apprendi doctrine.

February 22, 2010 in Blakely in the Supreme Court, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (10) | TrackBack

Sunday, February 21, 2010

New (and needed) scholarship on the Armed Career Criminal Act

Serious sentencing gurus know that the Supreme Court and lower federal courts have been struggling greatly in recent years to figure out how to apply the federal Armed Career Criminal Act. I am thus pleased to see some new scholarship on this topic in the form of this new article by David Holman, which is titled "Violent Crimes and Known Associates: The Residual Clause of the Armed Career Criminal Act." Here is the abstract:

Confusion reigns in federal courts over whether crimes qualify as “violent felonies” for purposes of the Armed Career Criminal Act (ACCA).  The ACCA requires a fifteen-year minimum sentence for felons convicted of possessing a firearm who have three prior convictions for violent felonies.  Many offenders receive the ACCA’s mandatory minimum sentence of fifteen years based on judges’ guesses that their prior crimes could be committed in a violent manner - instead of based on the statutory crimes of which they were actually convicted.  Offenders who do not deserve a minimum sentence of fifteen years may receive it anyway.

The courts’ application of the ACCA is also underinclusive.  Although the ACCA defines “violent felony” to include all crimes that “present a serious potential risk of bodily injury to another,” a 2008 Supreme Court decision has drastically narrowed the so-called residual clause.  Begay v. United States held that crimes fall under the residual clause only if they are “purposeful, violent and aggressive” as a matter of law.  This imprecise, extra-statutory formula has resulted in the exclusion of some seriously risky crimes of recklessness and negligence, and created tension with the nearly identical “crime of violence” definition in the career offender sentencing guideline.

This Article is the first to survey ACCA jurisprudence after Begay and the Court’s 2009 decision in Chambers v. United States and to detail the conflict between these decisions, the text of the ACCA, and the Court’s prior precedent.  This Article offers lower courts a way to apply the ACCA’s residual clause with greater respect for the Sixth Amendment right to a jury trial, the statutory text, and precedent.  First, courts should narrowly construe Begay’s requirement of “purposeful” conduct to exclude strict liability crimes from the residual clause but include crimes of negligence and recklessness.  Second, courts should read Begay’s “aggressive” requirement as a rhetorical flourish without any meaningful distinction from its “violent” requirement.  Third, despite Begay’s apparent invitation to do otherwise, courts should strictly follow the “categorical approach” as set forth in Taylor v. United States.  The net result of these three steps would be a greater faithfulness to the text of the ACCA: courts applying the residual clause would include only those crimes whose elements require violent conduct while excluding those crimes whose elements do not require violence or any mens rea.

February 21, 2010 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (4) | TrackBack

Saturday, February 20, 2010

Canada's Supreme Court authorizes discount for police misconduct while upholding mandatory sentencing term

As detailed in this article from the Toronto Star, which is headlined "High court clarifies minimum sentences: They can be lowered to remedy police abuse, but in most cases mandatory penalty must apply," the Supreme Court of Canada handed down a very interesting sentencing ruling late yesterday. Here are the basics:

Trial judges can lower sentences to denounce police misconduct, but in most cases cannot undercut a mandatory minimum penalty set by Parliament, the country's top court says.  The Supreme Court of Canada's ruling stems from a 2004 Alberta case in which a drunk driver was beaten by police. 

The decision is considered important because it focuses on mandatory minimum penalties, a contentious tool the federal Conservatives have increasingly invoked in their "tough-on-crime" agenda.  The top court did not rule out the "possibility that, in exceptional cases" of egregious behaviour by police, a sentence could be reduced below a limit set out in law. "A sentence cannot be 'fit' if it does not respect the fundamental values enshrined in the Charter," wrote Justice Louis LeBel in the 9-0 decision.

The ruling upheld an Alberta Court of Appeal and trial judge's findings that the RCMP used excessive force when arresting a drunk driver in Leduc in 2004. But the high court agreed with the Alberta appeal court, which restored a mandatory minimum $600 fine for impaired driving on top of a 12-month conditional discharge and one-year driving prohibition.

The Supreme Court's ruling is meant to give guidance to situations in which lower courts have taken different approaches in using sentence reduction as a way to respond to Charter breaches.  But it clearly reinforces the need for courts to respect Parliament's decisions to set sentencing floors....

LeBel said "the general rule" is that judges exercising sentencing discretion must follow the guidelines set out by Parliament, and "impose sentences respecting statutory minimums" or other legislated limits on sentencing discretion. There may be "exceptional" cases in which a sentence ought to be reduced even below a statutory minimum, where a lower sentence might be the "sole effective remedy for some particularly egregious form of misconduct by state agents," the high court said.

[The defendant Lyle] Nasogaluak pleaded guilty at trial to impaired driving and flight from police – offences that ordinarily would have drawn six to 18 months in jail and a mandatory fine of $600.

At sentencing, he sought and won a reduced sentence because of the police misconduct.  The judge ruled police had violated his Charter rights and gave him two conditional 12-month discharges and banned him from driving for a year.

The Supreme Court agreed the police had used excessive force, violating his right to "life, liberty and security of the person" under the Charter. The high court said Nasogaluak's penalty was rightly reduced by the trial judge. LeBel said judges at sentencing may consider "not only the actions of the offender, but also those of state actors."

The full ruling in Regina v. Nasogaluak, 2010 SCC 6 (Canada Feb. 19, 2010), can be accessed at this link.

Some related posts:

February 20, 2010 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (6) | TrackBack

Thursday, February 18, 2010

A telling attack on mandating ignition interlocks for all drunk drivers

A local Tennessee paper has this interesting new commentary which is headlined "MADD's interlock proposal lumps all drinkers in same category."  The piece discusses and attacks a legislative proposal in Tennessee that would call for a specific sentencing response to all drunk driving.  Here are excerpts from the commentary:

This week, Mothers Against Drink Driving (MADD) voiced support for a bill to require ignition interlocks for all drunken driving offenders in Tennessee.  And while at first glance it might seem like a good way to get drunks off the road, readers should know that there is an important argument to be made against the mandatory use of these devices in the cars of all offenders....

[T]he proposed law supported by MADD would force judges to order low-BAC, first-time offenders — even those just one sip over the legal limit (and occasionally under the limit) — to install interlocks.  A 120-pound woman can reach the legal limit of 0.08 after two 6-ounce glasses of wine over a two-hour period. Under this new mandate, if she drives she will automatically be punished with an interlock for behavior that, according to studies, is equivalent to driving while talking on a "hands-free" cell phone. 

Mandating ignition interlocks for all DUI offenders is a one-size-fits-all approach that would punish that woman the same way as the hardcore abusers who cause the vast majority of alcohol-impaired fatalities. It eliminates a judge's ability to treat these very different offenders differently.

America's criminal justice system has a terrible record with universal sentencing guidelines. It's a lesson that the California legislature learned after a "three strikes" law sentenced a man to 25 years in prison for stealing a piece of pizza. Judges should be able to adjust some sentences based on circumstances and common sense....

In addition to targeting the wrong offenders, this mandate will cost millions of dollars to enforce. Based on estimates from the American Probation and Parole Association (APPA), it would cost Tennessee at least $10 million per year to ensure that offenders comply with the interlock mandate.

Most state legislatures have already made it clear that they favor judicial discretion for marginal DUI offenders by rejecting low-level first-offender mandates or passing ignition interlock bills that target high-BAC and repeat offenders. Tennessee should do the same....

MADD is trying to subtly encourage Americans to be supportive of such in-car alcohol-sensors by making interlock technology more ubiquitous. That's why requiring interlocks for all offenders is MADD's top priority in Tennessee.  Tennessee should reject this proposal to require interlocks for all offenders. Instead, the state should target the high-BAC and repeat offenders who pose the biggest threat to safety on the roads.

I do not believe I have previously seen the standard arguments against mandatory prison sentences marshalled against requiring ignition interlocks for all drunk driving offenders, and it is especially interesting to see here the blanket (and, in my view, inaccurate) assertion that "America's criminal justice system has a terrible record with universal sentencing guidelines."  Though I fully agree that a "one-size-fits-all approach" to most sentencing issues is a very bad idea, especially when costly incarceration is involved, I am not sure that the classic arguments against mandatory minimum prison terms are quite so strong with respect to a simply requiring a tailored alternative sentencing mechanism like ignition interlocks for drunk drivers which merely seeks to prevent repetition of a particular type of illegal behavior.

So, who exactly is making this attack on the proposed law supported by MADD in Tennessee?  Is it the folks at the organization Families Against Mandatory Minimums?  Is it a representative of a woman's group concerned that petite women might get punished "the same way as the hardcore abusers"?  Nope, it is Sarah Longwell, who is "the managing director of the American Beverage Institute in Washington."  I am pleased to learn that the American Beverage Institute is so troubled by mandatory sentencing provisions, but I am sorry that this concern only finds expression in a forceful commentary when those provisions are targetting drunk drivers.

Some related posts on sentencing drunk drivers:

February 18, 2010 in Criminal Sentences Alternatives, Mandatory minimum sentencing statutes, Offense Characteristics, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (5) | TrackBack

Wednesday, February 10, 2010

"Cheese in pants may draw life term for Yolo man"

The title of this post is the headline of this article from today's Sacramento Bee.  Here are the particulars:

A Yolo County man who put cheese down his trousers faces a life sentence when he goes before a judge next month.

Jurors convicted Robert Preston Ferguson of two counts of petty theft on Jan. 6.  One conviction was for swiping a woman's wallet from a convenience store counter.  The other was for stealing $3.99 worth of shredded cheese from the Nugget Market in Woodland.  Officers testified that Ferguson put the cheese in his pants and was apprehended in the parking lot.

Because of a lengthy criminal history that dates back 35 years, including six first-degree burglary convictions, Yolo prosecutors charged the petty theft counts as felonies. They say 22 years in prison failed to teach Ferguson, who is in his 50s, to obey the law.

Now they're asking a judge to give Ferguson a life sentence under the state's "three-strikes" law when he comes back to court March 1.  "Holding the defendant fully accountable will protect society from a repeat criminal offender," prosecutor Clinton Parish's motion says.

Defense lawyers have asked the judge to exclude Ferguson's prior offenses in sentencing, saying that the man is mentally ill and has substance abuse problems.  "At bottom, the prosecution's position is simply that because Mr. Ferguson has a criminal record he should be incarcerated for the term of his natural life for allegedly taking $3.99 worth of Tillamook cheese and allegedly taking a wallet the value of which has not been ascertained," public defender Monica Brushia's brief says.

As with most sentencing stories that make news, this case is sad and serious.  And yet, my impulse to leaven a snow day with some jocularity entails that I make light of this situation (and encourage readers to play along in the comments). 

For example, I cannot help but think of a Mae-West-type spin on what a female cop might have said when apprehending Ferguson: "Is that a three-strike sentence in your pocket, or are you just glad to see me?"  Also, I wonder if Larry Pratt might get inspired to consider a "Cheese in the Pants" sequal to his viral hit "Pants on the Ground".  Here's a possible lyric: "Looking like a fool ... and at a life sentence ... with the cheese in your pants!"

February 10, 2010 in Mandatory minimum sentencing statutes, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (13) | TrackBack

Tuesday, February 02, 2010

Backstory on the Gould mandatory minimum case recently taken up by SCOTUS

Gehrig A helpful readers forwarded to me this new Texas Lawyer story headlined "Gunning For a Mandatory Minimum," which provides the background and backstory concerning the Supreme Court's recent cert grant in a case involving the application of an important federal mandatory minimum statute.  Here is how the piece starts:

Carlos Rashad Gould may be the luckiest federal inmate in the state of Texas.  Few indigent prisoners have a team of expensive, big-firm civil lawyers working pro bono on their appeals, as Gould does.  Still fewer get their cases heard at the U.S. Supreme Court, as Gould learned on Jan. 25 that he would when the high court granted his petition for writ of certiorari.

Gould's cert writ in Gould v. United States stems from a 5th U.S. Circuit Court of Appeals decision that involves the most common type of case decided by that court: a defendant's appeal of a trial court's sentencing decision. [See Gould's Petition for Writ of Certiorari.]

"To have it go up on a valid cert petition and one that gets granted, Mr. Gould's case has had a pretty unusual life in the appellate courts," says David Horan, a partner in the Dallas office of Jones Day who the 5th Circuit appointed to represent Gould in 2007.

At the Supreme Court, Gould's case has been consolidated with a 3rd U.S. Circuit Court of Appeals case, Abbott v. United States.  If Gould and Kevin Abbott win at the high court, their cases could shave several years off the prison sentences of countless inmates convicted of carrying firearms in the commission of crimes of violence or drug trafficking.

The relevant statute, 18 U.S.C. §924(c)(1)(A), provides mandatory minimum sentences for defendants convicted of carrying firearms while committing crimes of violence or drug trafficking crimes.  The issue in Gould and Abbott involves statutory interpretation: Does the mandatory minimum sentence in §924(c) apply when a defendant is convicted of a related crime that carries a higher mandatory minimum sentence?

Gould and Abbott argue in their cert petitions that the answer is "no."  While an opinion from the 2nd U.S. Circuit Court of Appeals comes to that conclusion, rulings in the 5th Circuit and 3rd Circuit do not.

Though I would not describe being "the luckiest federal inmate in the state of Texas" as a Lou Gehrig type accomplishment, I do suspect that a good number of fellow federal inmates will be watching the Gould case closely and will be hoping that Carlos Rashad Gould's lawyers hit a grand slam when they step up to the SCOTUS oral argument plate in a few months.  (Is it obviously I am already eager for the start of spring training?)

February 2, 2010 in Mandatory minimum sentencing statutes, Sentences Reconsidered | Permalink | Comments (16) | TrackBack

Friday, January 29, 2010

Abortion doctor killer convicted (and subject to mandatory life WITH parole sentence) in Kansas

As detailed in this new Wall Street Journal report, a jury in Topeka, Kansas "took less than 40 minutes Friday to find Scott Roeder guilty of first-degree murder for shooting abortion provider George Tiller in a church here last May."  Here is how the WSJpiece describes the sentencing consequences: "The murder conviction carries a mandatory sentence of life in prison, though under Kansas law, parole is possible [in 25 years, I believe]. Mr. Roeder, 51 years old, will be sentenced in March."

Especially because the nature of this kind of crime can perhaps distort usual sentencing politics, I wonder if folks that are usually vocal opponents of both the death penalty and mandatory minimum sentencing provisions are at all troubled that Roeder is not eligible for the death penalty or that he is subject to a mandatory minimum sentence here.  Conversely, I wonder if folks who are usually vocal proponents of both the death penalty and mandatory life without parole sentences for first-degree murderers are at all troubled that Roeder is not going to be facing either of these sentences for his crime.

On a related front, this Newsweek blog post notes that abortion doctor killers have generally gotten harsher sentences in other jurisdictions:

Harsh punishment for violence against abortion doctors has not proven a deterrent in preventing such crimes.  Michael Griffin was sentenced to life in prison after murdering abortion provider David Gunn in 1993.  The next abortion-provider murderer, Paul J. Hill, who killed a Florida provider in 1994, received lethal injection.  But that did not prevent a wave of anti-abortion violence in the 1990s that left three clinic workers and one abortion provider dead.  Roeder acknowledged that he had begun thinking about killing Tiller as early as 1993, and in great detail — he told the jury how he considered cutting off Tiller's hands with a sword or tracking him down at his house.  The repeated life or death sentences of those who have murdered abortion providers apparently provided no deterrent.  As long as there are extreme anti-abortion groups who praise Roeder as an "American hero," abortion providers will have to continue to see the threat of violence a part of the profession they chose.

Of course, astute punishment theorists should be quick to respond to this blog post by noting that Roeder crime alone does not definitively show that "[h]arsh punishment for violence against abortion doctors has not proven a deterrent in preventing such crimes."  For all we know, absent the tough punishments given to Gunn and Hill, perhaps there would have been many more killings of abortion doctors.  In other words, the fact that Roeder was not deterred does not necessarily mean that others weren't.  

January 29, 2010 in Mandatory minimum sentencing statutes, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (24) | TrackBack

Monday, January 25, 2010

SCOTUS grants cert on another mandatory minimum sentencing issue

Adding to a docket that is already heavy with important sentencing cases, the Supreme Court this morning added another through its cert grant the consolidated cases of Abbott v. United States (09-479) and Gould v. United States (09-7073).  Here is how SCOTUSblog decribes the issue in Abbott, along with links to key materials in the case:

Docket: 09-479
Title: Abbott v. United States

(1) Whether the term “any other provision of law” of 18 U.S.C. 924(c) includes the underlying drug trafficking offense or crime of violence; and (2) if not, whether it includes another offense for possessing the same firearm in the same transaction?

As federal criminal justice practioners know, the mandatory minimum sentencing provisions in 924(c) concerning the use of firearms in connection with other offenses are extremely significant and consequential.  It is unclear if Abbott and Gould could have a broad impact in other cases, but they clearly present yet another important set of cases to watch over the next few months.

January 25, 2010 in Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (5) | TrackBack

Friday, January 15, 2010

Third Circuit requires two predicate offenses to impose two 924(c) mandatories

The Third Circuit has a long discussion in US v. Diaz, No. No. 08-4088 (3d Cir. Jan. 14, 2010) (available here), of an interesting issue in the application of the mandatory minimum consecutive sentencing terms for two consecutive terms of 120 months for two § 924(c) convictions.  The ruling covers a lot of case law on the way to concluding that “a defendant who uses multiple firearms in relation to a single drug-trafficking crime may be charged with only one violation of § 924(c)(1).” Here is how the Diaz ruling sums up its determination:
For the reasons set forth, we will vacate one of Diaz’s two § 924(c) convictions and remand to the District Court for resentencing.... As the Supreme Court stated in Bass, 404 U.S. at 348, “because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity. . . . [t]hus, where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant.”

January 15, 2010 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Friday, January 08, 2010

New Jersey on verge of repealing state's school-zone drug laws

Legislative action on criminal sentences often appears to be largely a one-way ratchet, with new laws often pushing punishments up and rarely bringing them down.  However, as detailed in this local report, New Jersey is about the buck the trend through a repeal of its school-zone drug laws.  Here are the details:

People arrested for some drug offenses near schools should no longer face mandatory prison sentences, lawmakers decided today. Assembly members voted 46-30 to send the bill (A2762) to the governor's desk for final approval.

The state has imposed mandatory prison terms of one to three years for people caught dealing drugs within 1,000 feet of a school since 1987. “The mandatory minimum sentencing the zones require has effectively created two different sentences for the same crime, depending on where an individual lives," Assemblywoman Bonnie Watson Coleman (D-Mercer) said in a statement. "This is geographic discrimination at its most basic."

Supporters of the bill say those sentences have unnecessarily stuffed New Jersey prisons with nonviolent offenders who deserve probation or access to drug treatment programs. Almost 70 percent of the 6,720 drug offenders serving time in state prisons have mandatory minimum sentences, according to the Department of Corrections.

The bill passed yesterday would allow judges to reduce the required minimum sentence or impose probation, depending on whether the offense occurred when school was in session, its proximity to school grounds, and if children were present. Sentences could not be reduced if the offense took place on school grounds or if it involved violence or a gun.

In addition, the bill will allow current inmates to appeal the mandatory minimum sentences they’ve already received. “This is a progressive solution to a complex problem,” Assemblyman Gordon Johnson (D-Bergen) said in a statement.

I know a lot of folks have worked long and hard to get this legislative change through, and those folks merit great credit for helping the legislature work toward a more nuanced solution to a complex problem.

Some related posts (which go back more than four years):

January 8, 2010 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, December 16, 2009

Notable and insightful Blakely habeas ruling from the Sixth Circuit

The Sixth Circuit has an effective little panel decision today in a habeas case concerning the application of Blakely to Ohio sentencing law.  The ruling in Arias v. Hudson, No. 08-4513 (6th Cir. Dec. 16, 2009)  (available here), has many notable aspects, and here is how the opinion starts and concludes:

The warden appeals an order conditionally granting habeas corpus to Manuel Arias on the ground that his sentence violates Blakely v. Washington, 542 U.S. 296 (2004).  Arias’s sentence does not violate Blakely, however, because the judicial fact-finding at issue merely increased his minimum sentence.  We accordingly reverse.

The continuing vitality of McMillan and Harris may be put to the test in a pending case at the Supreme Court. See United States v. O’Brien, ___ U.S. ____, 130 S. Ct. 49 (2009) (granting certiorari in a case involving fact-finding that increased a defendant’s minimum sentence). The case could be decided by overruling McMillan and Harris, but it also could be decided on statutory grounds, as the First Circuit decided the case below.  See United States v. O’Brien, 542 F.3d 921, 924 (1st Cir. 2008). Regardless of what happens in O’Brien, however, this Sixth Amendment reality remains: At the time the judge imposed Arias’s sentence, the Supreme Court treated judicial fact-finding differently depending on whether it affected the minimum sentence faced by a defendant or the maximum sentence for which the defendant was eligible.  Because the courts have not treated Blakely or United States v. Booker, 543 U.S. 220 (2005), as changes in law that should be applied retroactively to cases whose direct appeal concluded before their announcement, we see little prospect that the courts will apply any such (potential) change in the law retroactively to Arias. Cf., e.g., Duncan v. United States, 552 F.3d 442, 447 (6th Cir. 2009) (holding that Booker does not apply retroactively to cases pending at the time of Blakely).

In the last analysis: McMillan and Harris were good law at the time of Arias’s sentencing, and they remain so today; the two decisions allow judicial fact-finding that increases a defendant’s minimum sentence; Arias waived his right to have the jury make any findings of fact that might increase his maximum sentence; and an increase in the minimum term of this sentence is governed by Harris. All of this leaves Arias with no cognizable basis for challenging his sentence.

I am very pleased to see this panel opinion give voice to the possibility that the vitality of McMillan and Harris may be at issue int he upcoming O’Brien case.  This ruling in Arias also provides a useful and important reminder that defendants whose case may turn in some way on the vitality of McMillan and Harris ought to be extra sure to be preserving (and prolonging?) this issue in their cases.

(On an somewhat unrelated front, the Sixth Circuit today also released this order in an immigration case which includes a dissent that has, among other flourishes, these two amusing footnotes: "Seriously, a Turkish prison" and "With a tip of the hat to M. Colbert of The Colbert Report".)

December 16, 2009 in Apprendi / Blakely Retroactivity , Blakely in Appellate Courts, Mandatory minimum sentencing statutes | Permalink | Comments (0) | TrackBack

The now-quite-common dollars and sentencing debate taking place in Arizona

A down economy and tight state budgets has prompted nearly all states to confront the critical and valuable issue of how public safety can be maintained or improved at less cost.  This local article from Arizona, which is headlined "House panel reviews cost of sentencing," reports on the terms of the debate that is now quite familiar to serious students of state criminal justice systems:

Arizona's state budget problems are prompting lawmakers to take a new look at how the state does business. On Tuesday, a House committee started work on a re-examination of crime and punishment in Arizona. The issue: Are there changes in state sentencing laws that would save money? How can the state protect citizens while still cinching its budget belt?

"The goal is to correct some of the problems in the criminal-justice system," said Rep. Cecil Ash, R-Mesa and the committee chairman. That would include rooting out spending inefficiencies as well as injustices, he said, after the committee concluded a nearly four-hour hearing.

Ash, a former public defender, said he hopes for recommendations that will lead to changes in the law. Saving money isn't the only goal, although it's likely if the committee comes up with alternatives to locking up criminals at an average cost of $30,000 a year. "If you're paying $30,000 a year for an inmate, one probation officer could take care of 30 to 40 prisoners," Ash said of a possible shift to more probation as an alternative to mandatory minimum prison terms.

Sentencing laws are just the beginning of the hunt for ways to save money. House Speaker Kirk Adams has formed three more study committees dealing with education finance, behavioral health and the federal stimulus act. Their work should start next month....

On Tuesday, the study committee on prison sentencing got a mixed bag of advice.

Public defenders, a former state appeals-court judge and the families of inmates pleaded for a rollback of Arizona's mandatory minimum-sentencing laws. They backed the idea of a sentencing commission that would take a fresh look at laws that date from the 1970s, with revisions made in the 1990s.

Prosecutors and crime-victim advocates advised caution, saying the current laws deter crime. "There is a persistent myth that Arizona's draconian sentences are imposed on first-time non-violent offenders," said Steve Twist, president of Arizona Voice for Crime Victims and a former state assistant attorney general.

But Shawnelee Cooper, whose husband is in prison on a substance-abuse-related charge, said he got ensnared in the mandatory sentencing laws. And there's a cost beyond the estimated $30,000 annual spending to house an inmate: She and her daughter, who has respiratory problems, are now on public assistance since the family lost its breadwinner. Cooper estimated it costs the state $2,000 a month to keep them on state-provided medical coverage.

December 16, 2009 in Mandatory minimum sentencing statutes, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Friday, December 11, 2009

New Jersey getting closer to repealing its school-zone mandatory minimums

This local article, which is headlined "Repeal of mandatory minimums in drug cases clears N.J. Senate," provides the latest update on legislative efforts in New Jersey to repeal certain mandatory minimum sentencing provisions. Here are some of the details:

The state Senate voted today to roll back mandatory minimum sentences for some drug offenses in school zones, a victory for supporters seeking treatment rather than jail time for nonviolent drug offenders. New Jersey has not loosened any mandatory minimum sentences in at least two decades, experts who studied the laws said.

"It’s going to save money, it’s going to save lives and it’s going to protect the public," said Sen. Raymond Lesniak (D-Union), the bill’s primary sponsor. "It’s not too often you get that combination." Since 1987, the state has imposed mandatory prison terms of one to three years for people caught dealing drugs within 1,000 feet of a school. Under the proposal approved by the Senate today, judges could reduce the required minimum sentence or impose probation, depending on whether the offense occurred when school was in session, its proximity to school grounds, and if children were present. Sentences could not be reduced if the offense took place on school grounds or if it involved violence or a gun.

Opponents of the bill said it would signal New Jersey is going soft on crime. Sen. Joseph Pennacchio (R-Morris) said it would allow criminals to "peddle their poison" to children. "It’s up to us to make these laws harsher," he said.

The bill’s supporters say mandatory minimums have not protected children and disproportionately punish minorities. New Jersey’s Commission to Review Criminal Sentencing reported that 96 percent of people incarcerated for violations in drug-free school zones are black or Hispanic.

Bennett Barlyn, who was the executive director of the commission, said the proposed law is good for the state. "It demonstrates a new approach by the Legislature in dealing with crime in a more nuanced way," he said. "It more appropriately tailors the punishment to the nature of the offense."

December 11, 2009 in Drug Offense Sentencing, Mandatory minimum sentencing statutes | Permalink | Comments (0) | TrackBack

Tuesday, December 08, 2009

Eight former NJ Attorneys General sign open letter supporting repeal of drug mandatories

As detailed in this AP article (which now carries a skewed headline), eight former attorneys general in New Jersey "have put their names behind an effort to repeal mandatory minimum sentences in some nonviolent drug cases."  Here is more:

The eight signed a letter to Gov. Jon Corzine and members of the Legislature today urging passage of a bill giving judges the discretion to waive mandatory minimum sentences....  The ex-prosecutors said mandatory minimum sentences waste money, don't increase public safety and keep offenders from drug treatment.

A helpful reader sent me a copy of the former AGs' letter (which can be downloaded below), and here is a key potent paragraph:

Mandating sentences for nonviolent drug offenders regardless of individual circumstances wastes money and does not increase public safety.  A compelling body of evidence, including outcome data from New Jersey’s own drug courts, indicates that drug treatment can be effective in treating offenders’ addictions, enabling them to lead productive, law-abiding lives.  In short, drug treatment for carefully screened nonviolent offenders can save lives, cut crime and reduce costs.  When this happens we all win.

Download Former NJ AG Letter re drug mandatories

December 8, 2009 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (41) | TrackBack

Thursday, November 12, 2009

Noticing the mandate from Congress to the US Sentencing Commission on mandatory minimums

This new Wall Street Journal article, which is headlined "U.S. Commission to Assess Mandatory Sentences," discusses the recently-enacted legislation instructing the US Sentencing Commission to study mandatory sentencing statutes.  Here are excerpts:

Congress has ordered the panel that advises judges on prison terms to conduct a review of mandatory-minimum sentences, a move that could lead to a dramatic rethinking of how the U.S. incarcerates its criminals.

The review is a little-noticed element of the National Defense Authorization Act signed into law last month by President Barack Obama.  The defense-spending bill calls on the commission to perform several tasks, including an examination of the impact of mandatory-minimum sentencing laws and alternatives to the practice....

The U.S. Sentencing Commission, which advises judges on all other sentences, has now been charged with issuing recommendations on mandatory minimums.  Any final change in sentencing law would have to come from Congress. "It's going to be a massive undertaking," said the new chairman of the Sentencing Commission, William Sessions III.

Mr. Sessions, who is also the chief federal judge in Vermont, said the review would include everything from determining the effects of minimums on the size of the prison population, to spending and the social impact of the policies. "In my view," he said, "it's a very open-ended request."

The inmate population in federal prisons has risen from 24,000 in 1980 to 209,000 as of Nov. 5.  Over the same period, the federal Bureau of Prisons staff has grown from 10,000 to about 36,000 employees.

The commission has pushed for changes in mandatory minimums, such as ending the disparity in sentencing for crimes involving crack-cocaine and powder cocaine.  Several proposals are pending in Congress to address the crack-cocaine issue.  But the commission has not done a full-scale examination of federal sentencing laws since 1991.  At the time, there were only 60 mandatory-minimum laws on the books. Now there are about 170.

According to a limited review released by the commission in July, most mandatory-minimum cases in 2008 concerned drugs or weapons crimes.  The review found that 21,023 offenders were convicted of crimes that could have triggered the mandatory-minimum sentence.  Many got more lenient sentences for a variety of reasons, including cooperation with authorities.

The commission will examine the effects of mandatory minimums on plea agreements.  Critics of the system say the threat of such sentences is used to coerce plea bargains.  Members of the commission have been traveling the country to meet with judges, prosecutors and defense attorneys.  Many have pressed the commission to provide alternatives to imprisonment for nonviolent, low-level drug defendants.

Given that there has been no real movement on even crack-powder mandatory reform over the last three years while Democrats have been in control of both houses of Congress, I am not especially optimistic that this newly-ordered USSC review will lead to "a dramatic rethinking of how the U.S. incarcerates its criminals."  Still, it is encouraging to hear the new head of the USSC talking about this ordered review being done in a grand manner.

Some related recent posts:

November 12, 2009 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, November 01, 2009

State judge calls for repeal of school-zone mandatory sentences

This local articlefrom Pennsylvania, which is headlined "Berks judge: End mandatory sentences involving drug sales in school zones," reports on a state judge complaining about the consequences of mandatory minimum sentencing terms for drug sales in school zones.  Here is how the article starts:

A Berks County judge called for immediate action from legislators to repeal a law allowing prosecutors to seek mandatory sentences for drug dealers selling within 1,000 feet of a school. "We cannot continue to fill up the prisons with nonviolent people who sell marijuana," Judge Linda K.M. Ludgate said. "We are in a state budget crisis. This law no longer makes sense."

Ludgate, head of criminal court, was on a Pennsylvania Commission on Sentencing advisory committee that concluded the law must be repealed. The panel's report was presented to the House Judiciary Committee.  "We cannot wait any longer for this law to be repealed," said Ludgate, also a member of the Pennsylvania Commission on Sentencing.  "It's no longer practical.  The legislators must decide whether they want to fill up prisons with murderers and rapists or people selling marijuana."

The numbers show Berks County prosecutors imposed mandatory sentences for 186 cases, or 63 percent, of the 294 mandatory-sentence cases in 2008.  The law requires judges to impose mandatory sentences when requested by prosecutors.  Prosecutors statewide obtained mandatory sentences in 314 drug-zone cases, or 18 percent of the 1,732 mandatory sentences handed down in 2008.  The report concluded the 1997 drug-free school zone is clogging up prisons, not shielding children from drugs.

"There is no relationship between the school zone and selling drugs to kids," said Mark Bergstrom, executive director of the Pennsylvania Commission. "If you are selling drugs to another person at 2 in the morning, and there are no kids out, you still face a mandatory sentence," he said. "This is not the intention of the law."

Recent related post:

November 1, 2009 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, October 23, 2009

New hate crimes bill requires US Sentencing Commission to complete mandatory minimum study

As detailed in this New York Times article, the "Senate voted Thursday to extend new federal protections to people who are victims of violent crime because of their sex or sexual orientation, bringing the measure close to reality after years of fierce debate."  Though this federal criminal justice development is probably of much more symbolic than practical importance, the hate crime bill includes a provision that requires the US Sentencing Commission to produce a new study on the impact of mandatory minimum sentences.

This statement from Senator Patrick Leahy provides some helpful background on the bill.  Here is how the statement starts and how it explains the mandatory minimum part of the story:

After more than a decade, Congress is finally set to pass the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 as an amendment to the National Defense Authorization Act, and I expect the President to sign it promptly. I am proud that Congress has come together to show that violence against members of any group because of who they are will not be tolerated in this country....

This legislation was carefully crafted to respect constitutional limits and differences of opinion. It will combat acts of violence motivated by hatred and bigotry, but it does not target speech, however offensive or disagreeable, and it does not target religious expression.

I wish there had been more Republican support for this important civil rights amendment. Nonetheless, in the Senate we worked to address bipartisan concerns and issues. We incorporated Republican amendments mandating guidelines for hate crimes prosecutions, further changing First Amendment protections, and creating a new criminal offense for attacks against service members because of their service.

I am disappointed that the service members provision contains a mandatory minimum sentence because I believe that mandatory minimum sentences can have unintended and unfortunate effects on sentencing and on our criminal justice system.  However, I was pleased that we were able to limit the provision to one modest mandatory minimum sentence and require the United States Sentencing Commission to study the effect of mandatory minimum sentences.  I am also glad that we were able to pass this bill without adding a new Federal death penalty, which would have needlessly inserted a divisive issue into this legislation.

October 23, 2009 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (10) | TrackBack

Sunday, October 18, 2009

New report on mandatory minimum sentences from Pennsylvania Commission on Sentencing

The Pennsylvania Commission on Sentencing late last week released this important research report, which is titled "A Study on the Use and Impact of Mandatory Minimum Sentences."  The study was undertaken at the direction of the state legislature, and it examined 1) the extent to which mandatory sentences are imposed, 2) the processing of mandatory sentencing cases, and 3) the effectiveness of mandatory sentencing with respect to crime reduction.

This local press article, which is headlined "State commission says drug-free school zone law should be repealed," reports on some of the highlights:

In a 490-page report Friday, the Pennsylvania Commission on Sentencing recommended the repeal of the drug-free zone law that prosecutors invoked against Range. The report also advocated raising the threshold of cocaine needed to trigger enhanced penalties for trafficking -- from 2 to 5 grams -- and allowing more drug cases to go through intermediate punishment or boot-camp programs.

The recommendations, part of an overall study of mandatory minimums in the state, offer a change from the mid-1990s, when many of the beefed-up laws were enacted amid a popular mantra of get-tough-on-crime.

Critics say the laws are clogging prisons, breaking state budgets and failing to address the problems they aim to, prompting legislatures to reconsider the wisdom of warehousing offenders when studies show treatment is cheaper and produces less recidivism.

"This year in the budget process was the first year I've heard some serious discussion of the cost, and 'Let's look at those issues,'" said Mark Bergstrom, executive director of the Pennsylvania Commission on Sentencing, which advises the state on sentencing policy. "It's a rare time when I actually think there can be some progress moving forward with these recommendations."

But that may not prove to be the case, because school zones and other heightened penalties are popular among prosecutors and law enforcement officials.

Northampton County District Attorney John Morganelli is a supporter of the state's mandatory minimums, though he believes that more aren't needed. He said the minimums are a useful plea bargaining tool, because prosecutors can trade them for an admission of guilt. He said the goals of school zones are laudable. "It would be a mistake [to repeal them]," Morganelli said. "It would send a bad message that it's OK to deal drugs in school zones."

U.S. Rep. Charlie Dent, R-Lehigh, wrote Pennsylvania's school zone law in 1997 while serving in the state Legislature. He says it has helped keep drugs away from children. "The real issue is if these people were not in prison and on the streets, what would crime be then?" Dent asked.

The commission's report found school zones are "overbroad" and go beyond the goal of preventing drugs from being dealt to children. It also says the 1,000-feet parameter is problematic in dense urban areas and disproportionately affects minorities.

October 18, 2009 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Thursday, October 15, 2009

New Senate bill introduced to eliminate crack/powder federal sentencing disparity

As detailed in this new Washington Post article, which is headlined "Senate Bill Would Eliminate Cocaine Sentencing Disparity," Senator Richard Durbin is championing a new bill to eliminate the crack/powder sentencing disparity in federal law. Here are some of the basics:

The Senate's second-ranking Democrat introduced a bill Thursday that would eliminate the sentencing disparity between crack and powdered cocaine, an issue that has frustrated judges, civil rights advocates and drug reform proponents for more than two decades. Under current law, it takes 100 times more powdered cocaine than crack to trigger the same mandatory minimum sentence. Activists say that disparity disproportionately impacts African Americans.

"The sentencing disparity between crack and powder cocaine has contributed to the imprisonment of African Americans at six times the rate of whites and to the United States' position as the world's leader in incarcerations," Majority Whip Richard J. Durbin (D-Ill.) said in a statement. "It's time for us to act."

Durbin's bill would also increase the volume of crack cocaine required to trigger a mandatory prison term, as well as stiffen penalties for large-scale drug traffickers and violent criminals.  The Fair Sentencing Act is co-sponsored by Democrats including Judiciary Committee Chairman Patrick J. Leahy (Vt.), Russell Feingold (Wis.), Benjamin L. Cardin (Md.) and Sheldon Whitehouse (R.I.)....

Some law enforcement officials have advocated eliminating the disparity by increasing the penalties for possession of powder cocaine, rather than, as Durbin's bill does, lowering the sentence for crack.  But those calling for a change in the law also cite economic reasons at a time when budgets are tight, noting that half of federal inmates are imprisoned for drug offenses. The U.S. Sentencing Commission has estimated that wiping away the sentencing disparity could save more than $510 million over 15 years, lawmakers said....

A companion bill in the House has passed the House Judiciary Committee and awaits action in the House Energy and Commerce Committee.  The idea won support from President Obama and Vice President Biden on the campaign trail, and Attorney General Eric H. Holder Jr. has also been supportive, but the administration has yet to announce a formal position on the bills before Congress.

I am pleased to hear this news, but I will not start getting too excited about this bill unless and until some some Republican Senators get behind it or until at least the White House and the Attorney General start expressing support.  In other words, I fear it is going to take a lot more than the usual political suspects to turn these kinds of (long-overdue) proposed reforms into a legal reality.

October 15, 2009 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Race, Class, and Gender | Permalink | Comments (1) | TrackBack

Tuesday, October 13, 2009

Interesting report on "Crack the Disparity" coalition of the Justice Roundtable

Via e-mail I received an interesting report concerning legislative briefings that took place today in the House and Senate which were entitled, “Crack Cocaine Sentencing: Exploring & Examining the Issues.” Here are the basics:

The breakfast and luncheon briefings brought together Republicans and Democrats, the left and the right, faith-based, academic, agency, and impacted to address this 23 year long issue. Over 13 Senate offices were represented and 26 House offices, in addition to interested persons across the ideological spectrum. The Senate briefing room was full, and there was standing room only on the House side.  Panelists included:

  • Chris Byrnes, Author of The Federalist Society’s white paper, “Proposals to Eliminate Sentencing Disparities Between Crack and Powder Cocaine Offenses”
  • Lisa Rich, Director of Legislative Affairs, U.S. Sentencing Commission
  • Pat Nolan, Vice President, Prison Fellowship
  • Paul Butler, former prosecutor & Professor, George Washington Law School
  • Lawrence Garrison, impacted person
  • Moderator – Hilary Shelton, Director Washington Bureau NAACP
C-SPAN2 covered the briefing on the Senate side. You can view it at this link.

October 13, 2009 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, October 06, 2009

Justice Scalia again seems to be the federal defendant's best friend in ACCA argument

Anyone who really follows the Supreme Court's criminal justice work should already know that the usual, knee-jerk labels and expectations concerning liberal/conservative voting patterns, though often holding true in capital cases and police practice cases, almost never hold true in the context of constitutional trial procedure and federal criminal statutory interpretation cases.  The latest data point on this front can be found in the full transcript of oral argument in Johnson v. US (08-6925), which is available at this link

Johnson is yet another Supreme Court case requiring the Justices to try to make sense of which prior state crimes suffice to trigger the 15-year mandatory minimum sentencing terms of the Armed Career Criminal Act (ACCA).  Though not an easy read, the Johnson transcript reveals Justice Scalia making a significant and sustained effort to provide a pro-defendant reading of the statute.  In notable contrast, Justice Breyer seems to be comfortable with a broader reading of the ACCA statute, though it is not entirely clear how he will vote in the case (especially since last term Justice Breyer thoughtfully suggested that the rule of lenity should apply with special force in cases involving mandatory minimum sentencing provisions).

There are other tea leaves worth reading for real ACCA junkies in the Johnson transcript, though it is hard to come away from the transcript without agreeing with Justice Alito's well-articulated view in an earlier ACCA case that Congress need to fix via a new statute the very messy and opaque jurisprudence that the Supreme Court's ACCA decision have now produced.

October 6, 2009 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics | Permalink | Comments (28) | TrackBack

Thursday, October 01, 2009

Might Apprendi be at risk with O'Brien cert grant?

In this post concerning the Supreme Court's grant of cert this week in US v. O'Brien, I reprinted the thoughtful notion by Kevin Reitz that the Harris mandatory minimum limit on the Apprendi might be subject to reversal in O'Brien.  But one commentor in that thread suggested that maybe the spirit might be moving the other way:

[T]he question presented in O'Brienis extremely broad.  So broad, I fear, that it could conceivably accommodate the overruling of Apprendi itself -- accommodate eliminating the constitutional distinction between elements and sentencing factors.

I have yet to see anyone raise this possibility: that Roberts, Kennedy, Breyer, and Alito voted to hear O'Brienbecause they are hoping to get Sotomayor on board the plane out of Apprendi-land.

This is somewhat fanciful and paranoid speculation, to be sure. But let's not forget Citizens United. I think overruling Apprendi is no less likely an outcome than overruling Harris.

Wow, that is some wild fanciful and paranoid speculation, especially given that Chief Justice Roberts seem to have some affinity for Apprendi-land as evidenced by his votes in Cunningham and Ice.  In addition, I would be very surprised to see the Solicitor General or anyone else actively advocate overruling Apprendi anytime soon.  Moreover, Justice Stevens has said that he would like to see Harris overruled, and so I think he will likely be working harder this (last?) term to extend Apprendi and will not take kindly to any move to undo his efforts there.

That all said, all these comments usefully highlight is the unsteady and uncertain status of all aspects of the entire Apprendi-Blakely-Booker jurisprudence, and O'Brien may thus be especially important for giving us an update on all the current Justices' take on this crazy-mixed-up Sixth Amendment stuff.

October 1, 2009 in Blakely in the States, Blakely in the Supreme Court, Mandatory minimum sentencing statutes | Permalink | Comments (4) | TrackBack

Wednesday, September 30, 2009

Might the Harris limit on Apprendi be at risk with O'Brien cert grant?

Professor Kevin Reitz sent me this tantalizing e-mail in response to te Supreme Court's cert grant today in O'Brien (basics here):

U.S. v. O’Brien gives the Court the chance to reconsider Harris v. U.S., 536 U.S. 545 (2002), which held that the Apprendi rule doesn’t attach to factfinding at sentencing that triggers a mandatory minimum sentence without increasing the available maximum penalty.  It would certainly be big news if the Court were to overrule Harris.  The Solicitor General’s office doesn’t expect this to happen (otherwise they wouldn’t have filed for cert).  Counting votes, however, it’s hard to call. 

Three dissenters in Harris remain on the Court: Stevens, Thomas, and Ginsburg.   Breyer’s concurring vote in Harris was wobbly — the rationale was that he could not “yet accept” the Apprendi rule.  If “yet” has now arrived, we may have four votes to overrule Harris.   Roberts, Alito, and Sotomayor are not clearly on record.  Sotomayor might well be a 5th vote?  

Stare decisis counts for something here.  Harris reaffirmed an earlier case against a fully-developed Apprendi challenge, so a 180-degree turn in O’Brien would be dramatic.  Still, from a policy view, once Apprendi and Blakely and Booker are the law, it would be nice to eliminate Harris’s mandatory minimum end-run around those cases.

September 30, 2009 in Blakely in the Supreme Court, Mandatory minimum sentencing statutes | Permalink | Comments (19) | TrackBack

Saturday, September 19, 2009

Lots of useful information in latest FAMMGram

The homepage of Families Against Mandatory Minimums has this annoucement: "The FAMMGram is here! It's packed with news on efforts to change federal mandatory minimums, FAMM project updates and more."   Among the features in this periodic newsletter that I found especially informative was (1) a piece on page 9 titled "State mandatory minimum reforms are far from rare," which details recent sentencing reforms in eleven states, and (2) a research update on page 12 that "highlights from the numerous reports that have been released so far in 2009" concerning various sentencing law and policy issues.

Check it out.

September 19, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (1) | TrackBack

Thursday, September 10, 2009

FAMM survey on views about sentencing reform

I received this inquiry from Families Against Mandatory Minimums via e-mail today, and was informed that FAMM would like to hear from as many persons as possible:

Why do you care about FAMM and sentencing justice?  Take FAMM's survey and let us know!  It only takes a minute, it's only five questions, and it's completely anonymous!  This is your chance to help FAMM learn more about our members and why you care about sentencing reform. Click the link below, or check FAMM's website or Facebook page to complete our survey. We'll post the results on our website at the end of September.

Please take a moment to do this FAMM survey.  It is really short and easy, and I hope both fans and foes of modern sentencing systems will weigh in.

September 10, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (4) | TrackBack

Monday, September 07, 2009

A remarkable concurrence in the affirmance of a long mandatory minimum sentence

Late Friday the First Circuit affirmed the application of a 20-year mandatory minimum sentence in a single-page per curiam opinion in US v. Cirilo-Munoz, No. 08-1830 (1st Cir. Sept. 4, 2009) (available here). The opinion in Cirilo-Muno is blog-worthy because of a remarkable five-page concurrence by Judge Torruella, which starts and ends this way:

This case, and its outcome, is a notorious example of oppressive injustice culminating in an outrageous adjudication.  It is a stain on the robes of American justice.  Appellant Cirilo-Muñoz was convicted of aiding and abetting the murder of an on-duty police officer.  He was convicted even though his co-defendant Lugo- Sánchez, the murderer himself, who initially tried to pin Cirilo-Muñoz for the murder and was the government's star witness, "testified unequivocally that Cirilo[-Muñoz] had no advance knowledge about his plan to murder . . . and did not assist him in committing the murder in any way." United States v. Mangual-Corchado, 139 F.3d 34, 50 (1st Cir. 1998) (McAuliffe, J., dissenting).   We are now called upon to affirm the imposition of a harsh mandatory minimum sentence, which only compounds the injustice caused by Cirilo-Muñoz's conviction.  Because I have taken an oath to uphold the law irrespective of my personal views, I am left without a principled choice in this appeal other than to concur, and, in the process, register my most vehement disagreement with the warped outcome of this case....

A series of coincidences have laid bare a system of law, which in Cirilo-Muñoz's particular circumstances has failed to protect him from the oppressive power of government and its bureaucracy.  The result is that a seventeen-year-old adolescent has been condemned to spending his entire adult life incarcerated in a federal prison.  To this wrongful outcome have contributed all three branches of government, with Congress making its contribution on this appeal through its draconian mandatory minimums.

Our prior decisions and the laws passed by Congress command this result, which I must obey. I write this opinion so that this injustice is not forgotten in our otherwise summary disposal of Cirilo-Muñoz's appeal.  His case calls out for clemency and relief, and should serve to remind us both of the flaws in our system of adjudicating guilt and the dangers of mandatory minimums.

I am not familiar with this case or the reasons why Judge Torruella sees the case as "a notorious example of oppressive injustice culminating in an outrageous adjudication."  But I am familiar with the reality that homicide defendants sentenced to something less than the death penalty often get overlooked by abolitionist activists eager to assail cases involving oppressive injustices.  I wonder if those activists might take up the defendant's cause as urged by Judge Torruella in this opinion.

September 7, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (12) | TrackBack

Friday, July 24, 2009

"Momentum Builds to Equalize Cocaine Penalties"

The title of this post is the headline of this article in today's Washington Post.  Here is how it starts:

After two decades of criticism over cocaine sentences that disproportionately punish blacks, momentum is building in Congress and in the Obama administration for a legislative fix, representing a fundamental shift in politics and attitude, even among key GOP lawmakers.

For the first time after multiple attempts, a House subcommittee this week approved a bill to equalize criminal penalties for people caught with crack and powder cocaine.  The bill would also eliminate five-year mandatory minimum prison terms for offenders convicted of possessing rock cocaine without an intent to sell it.

The subcommittee vote came as a bipartisan group of lawmakers on the Senate Judiciary Committee is meeting to craft a similar proposal, which could be unveiled as early as next week, according to two congressional sources familiar with the effort.

July 24, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (2) | TrackBack

Wednesday, July 22, 2009

House subcomittee takes first step to eliminate crack/powder federal sentencing disparity

Thanks to this post from TalkLeft and this press release from FAMM, I see that there has finally been some real, actual, tangible legislative movement on eliminating crack/powder federal sentencing disparity. Here are details from the FAMM press release:

Buoyed by Department of Justice support for eliminating the 100:1 sentencing disparity between crack and powder cocaine, and outraged by the high cost of incarcerating low-level drug offenders for excessively long prison terms, the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security unanimously passed H.R. 3245, the Fairness in Cocaine Sentencing Act of 2009, on July 22.

The bill would remove references to "cocaine base" from the U.S. Code, effectively treating all cocaine, including crack, the same for sentencing purposes. Original cosponsors of the bill include all Democratic members of the subcommittee and the sponsors of all other Democratic bills that address the cocaine sentencing disparity.

July 22, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (6) | TrackBack