Wednesday, June 22, 2011

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

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

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

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

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

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

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

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

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

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

Saturday, June 11, 2011

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

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

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

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

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

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

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

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

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

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

Thursday, June 09, 2011

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

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

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

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

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

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

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

Sunday, May 15, 2011

Obama Administration proposing mandatory minimum for harmful hackers

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

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

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

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

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

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

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

Friday, April 29, 2011

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

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

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

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

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

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

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

Tuesday, April 26, 2011

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

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

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

Download FSA_Holder_letter_response_042511

Some posts on this FSA issue:

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

Monday, April 25, 2011

Yet another ACCA case before SCOTUS this morning

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

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

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

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

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

NY Times editorial about crack sentence debates after FSA

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

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

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

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

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

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

Wednesday, April 20, 2011

Terrific new research from FAMM about enactment of federal mandatory minimums

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

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

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

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

The conclusions we drew from our data compilation:

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

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

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

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

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

Wednesday, April 06, 2011

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

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

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

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

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

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

Download JudgePonsorMemoonFSA-Watts

Some posts on this FSA issue:

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

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

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

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

Thursday, March 24, 2011

New report from The Sentencing Project on "Cracked Justice"

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

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

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

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

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

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

Sunday, March 13, 2011

Oregon report indicates mandatory minimums transfer sentencing power to prosecutor

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

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

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

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

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

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

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

Saturday, March 12, 2011

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

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

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

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

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

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

Some posts on this FSA issue:

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

Tuesday, March 01, 2011

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

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

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

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

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

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

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

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

Thursday, February 10, 2011

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

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

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

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

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

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

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

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

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

Friday, January 21, 2011

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

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

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

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

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

Download Santana FSA opinion

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

Some posts on the Santana litigation and recent related cases:

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

Thursday, January 20, 2011

Notable defense of parole focused on prosecutorial discretion

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

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

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

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

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

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

Tuesday, January 11, 2011

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

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

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

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

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

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

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

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

 Download FSA green_order

Download FSA green_attachment

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

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

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

Friday, January 07, 2011

SCOTUS takes up two plea bargaining cases and another ACCA

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

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

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

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

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

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

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

Wednesday, January 05, 2011

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

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

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

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

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

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

Download Cleotha Johnson FSA order

Some recent related posts:

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

Wednesday, December 15, 2010

"Top prosecutors oppose sentencing 'reform' proposals"

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

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

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

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

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

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

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

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

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

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

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

Sunday, December 12, 2010

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, December 02, 2010

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

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

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

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

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

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

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

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

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

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

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

Monday, November 29, 2010

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

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

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

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

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

Download Letter to Hon Preet Bharara 11-29-10

Some recent related posts:

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

Thursday, November 18, 2010

"Arizona mandatory-sentencing laws targeted"

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

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

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

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

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

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

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

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

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

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

Tuesday, November 16, 2010

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

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

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

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

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

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

Some recent related posts:

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

Monday, November 15, 2010

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

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

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

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

Friday, November 05, 2010

US Sentencing Commission report on mandatory minimums coming in Fall 2011

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

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

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

Thursday, November 04, 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, November 02, 2010

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

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

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

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

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

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

Sunday, October 31, 2010

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

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

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

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

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

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

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

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

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

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

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

Wednesday, October 27, 2010

New USDC opinion applying new FSA law to not-yet-sentenced defendants

A helpful lawyer altered me to a thoughtful new opinion by US District Judge D. Brock Hornby in US v. Douglas, No. 09-202-P-H (D. Maine Oct. 27, 2010) (available here), which concludes that a defendant guilty of committing a crack offense back in 2009 but "not yet sentenced on November 1, 2010, is to be sentenced under the amended Guidelines, and the Fair Sentencing Act‘s altered mandatory minimums apply to such a defendant as well."  Here is Douglas opinion's final substantive paragraph (and footnote) explaining how Judge Hornby reaches this conclusion:

I conclude, based upon the context of the Act, its title, its preamble, the emergency authority afforded to the Commission, and the Sentencing Reform Act of 1984, that Congress did not want federal judges to continue to impose harsher mandatory sentences after enactment merely because the criminal conduct occurred before enactment.  Yes, the 1871 Saving Clause deserves attention, but it does not command special attention. Generally, as Great Northern recognized, an earlier Congress cannot bind a later Congress. If it is a stretch to say that the Fair Sentencing Act of 2010 "expressly provide[s]" that the previous mandatory minimums are vacated for future sentences, Congress certainly made clear the urgency of change and its concern for fairness; and it gave no signal that it was distinguishing the emergency Guideline amendments that it expressly mandated from the statutory sentencing floors from which they directly flow.  In the words of the Supreme Court, it is either a "necessary implication" or a "fair implication" that, although retroactivity to those previously imprisoned might not be contemplated, the Fair Sentencing Act of 2010 permits no further federal crack sentencings that are not "fair."[FN57]

[FN57] Indeed, I would find it gravely disquieting to apply hereafter a sentencing penalty that Congress has declared to be unfair. One can imagine the ramifications of a contrary decision.  Defendants would seek to negotiate with federal prosecutors to waive indictment and plead to an information that charges conduct that extends after August 3, 2010, so that they could be sentenced under the new Act.  That charging option would be formidable leverage for prosecutors until the statute of limitations has run on criminal conduct that occurred before August 3, 2010.  And that discretion would be lodged with prosecutors where its exercise is invisible, rather than with judges whose decisions must be explained upon the public record.  That operation of the Fair Sentencing Act would belie its title, at least for the next few years.

October 27, 2010 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, October 24, 2010

Adding my two cents concerning application of the FSA to pending cases

As I noted in recent posts here and here, I think some courts have been a bit too quick to assert that defendants who committed crack offenses before the enactment of the Fair Sentencing Act can get no benefit from the the FSA's provisions.  Spurred on by a helpful lawyer in NYC litigating this issue for a defendant awaiting initial sentencing in a multi-defendant case, I put together a letter with my thoughts about applying the FSA's provisions to cases in the pipeline that have not yet been sentenced. 

The letter, which can be downloaded below, sets forth my view that Congress intended the new sentencing terms of the FSA to apply to pending cases as soon as possible.  The letter gets started this way:

Counsel for some defendants in the above-captioned case have informed me that your Honor is currently considering motions to apply the terms of the Fair Sentencing Act of 2010 (hereafter “FSA”), which amended the penalty provisions of 21 U.S.C. § 841, during the upcoming sentencing of pending cases in which the offense behavior took place before the FSA became law.  Taking on the role of a de facto amicus curae, I write to supplement some of the arguments set forth by counsel in this case.  Because I believe that principles of statutory construction support application of the provisions of FSA to all pending cases, I wanted to write to suggest a resolution to these motions that would enable this Court to avoid wading too deeply into the many complicated constitutional and policy issues that might arise if this Court were to refuse to apply the amended penalty provisions of 21 U.S.C. § 841 in a case of this nature.

As the motion papers already highlight, there are serious constitutional arguments and strong policy considerations supporting the application of the FSA to all criminal cases not yet final.  But, even more fundamentally, basic principles of statutory interpretation as well as venerated canons of construction suggest the FSA is to be applied to any and all cases such as this one in which an initial sentencing has not yet taken place.  As detailed below, I believe Congress revealed its intent for the FSA to apply to pending cases through key provisions of the statute itself and through comments by key legislators in the Congressional Record.  Moreover, even if this Court finds congressional intent to be unclear, both the rule of lenity and the constitutional doubt canon of statutory construction call for the FSA to be so applied.

Download FSA application letter from DAB

October 24, 2010 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (9) | TrackBack

Monday, October 04, 2010

SCOTUS kicks off new Term considering application of gun mandatory minimums

Though the new Supreme Court term does not have many obvious sentencing blockbusters in the works, the term kicks off today with a pair of sentencing cases.  As detailed in this SCOTUSblog post, the two cases address the same basic issue: "in Abbott v. United States and Gould v. United States, the Court will consider whether two defendants were improperly sentenced to consecutive five-year prison terms under 18 U.S.C. § 924(c) when they were subject to a greater minimum sentence on a different count of conviction."  This ABA Preview authored by Professor Brooks Holland provides more background:

Petitioners Kevin Abbott and Carlos Rashad Gould were convicted of narcotics and firearms offenses, including one count each of possessing a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c).  Section 924(c)(1)(A) mandates a five-year consecutive sentence for this offense, but exempts defendants “to the extent that a greater minimum sentence is otherwise provided by this subsection or any other law.”  Petitioners argued that this exception precluded a consecutive sentence because petitioners were subject to a greater minimum sentence on a different count of conviction.  The district court disagreed in each case and sentenced petitioners to a prison term of five years on the § 924(c) offense, consecutive to their other mandatory minimum sentences.  Petitioners’ consecutive sentences were affirmed on appeal.  The Supreme Court now must determine whether § 924(c)(1)(A)’s “except” clause applies to petitioners.

SCOTUSblog has all the filed briefs in Abbott and Gould linked on this case page.

UPDATE: The transcript of the oral argument in Abbott and Gould is available here.

October 4, 2010 in Mandatory minimum sentencing statutes, Offense Characteristics | Permalink | Comments (1) | TrackBack

Saturday, October 02, 2010

Effective review of the five new SCOTUS criminal justice cases

As noted in this prior post, this past week the US Supreme Court accepted five new criminal cases for its upcoming Term.  This article in the Wisconsin Law Journal, headlined "High court accepts five criminal cases," reviews the group.  Here is the article's coverage of the two sentencing cases:

[T]he court will decide whether a federal judge has the authority to reduce a federal criminal sentence after the U.S. Sentencing Commission amended the Sentencing Guidelines for crack cocaine, if the judge had already accepted a plea deal with the defendant, in Freeman v. United States, No. 09-10245.  The U.S. Supreme Court has agreed to answer this question, reviewing a decision from the 6th Circuit which held that case law precluded modification of a sentence imposed pursuant to a plea deal.

In that case, the defendant was charged with one count of crack possession, among other charges. He entered a plea agreement that included a sentence of 106 months.  After his agreement was accepted by the trial judge and his sentence was entered, the U.S. Sentencing Commission amended the Sentencing Guidelines to reduce the disparity in the treatment of crack and powder cocaine, and made the amendment retroactive.  The defendant then sought to reduce his sentence accordingly.

But a U.S. District Court refused to do so, and the 6th Circuit affirmed.  “[T]he district court did not indicate that failing to resentence [the defendant] resulted in a miscarriage of justice. … [The defendant's] original 106-month sentence remained inside the guidelines range for his crime, even after the amendment,” the court said.  His 106-month sentence fell at the bottom of the range before the amendment and at the top of the range after the amendment, it noted....

[In another] case, arising within the Seventh Circuit, the court will decide whether a conviction for resisting arrest counts as a violent felony under the Armed Career Criminal Act, in Sykes v. U.S., No. 09-11311.  The Seventh Circuit concluded it was, finding that eluding a police officer is “purposeful, violent and aggressive.”  U.S. v. Sykes, No. 08-3624 (7th Cir., Mar. 12, 2010).

October 2, 2010 in Implementing retroactively new USSC crack guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, October 01, 2010

Eleventh Circuit summarily (in dicta?) asserts that FSA sentencing changes cannot impact pre-change crimes

A few weeks ago in this post, I noted that the Sixth Circuit at the end of a seemingly minor opinion in US v. Carradine, No. 08-3220 (6th Cir. Sept. 20, 2010) (available here), addressed a major issue for any and all defendants hoping to get the an immediate benefit from the new crack sentencing provisions passed by Congress in the Fair Sentencing Act.  And I complained that the Sixth Circuit's analysis struck me as a bit too cursory.  Today, the Eleventh Circuit at the end of a seemingly minor opinion in US v. Gomes, No. 10-11225 (11th Cir. Oct. 1, 2010) (available here), seems to resolve a complex issue being litigated in district courts to a single sentence (of inaccurate? dicta?).

Specifically, here is the final sentence of a relatively short opinion in Gomes: "Moreover, because the FSA took effect in August 2010, after appellant committed his crimes, 1 U.S.C. § 109 bars the Act from affecting his punishment."   As my post title and mention above suggests, I am not sure if this sentence is part of the holding or just dicta in Gomes, and i am also not sure if it is accurate.  Nevertheless, I suspect all the folks litigating similar issues in district courts around the country will find this sentence important even if though it is opaque.

Related post:

October 1, 2010 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

Wednesday, September 29, 2010

Seventh Circuit finds that sentencing speed kills procedural reasonableness

The Seventh Circuit has an interesting reasonableness ruling today in US v. Glosser, No. 08-4015 (7th Cir. Sept. 29, 2010) (available here), which gets started this way:

The government appeals from a 121-month sentence a defendant received for attempting to possess more than 500 grams of methamphetamine, arguing that the district court committed procedural error by announcing and promising that it would impose the mandatory minimum sentence during the change of plea hearing, before it knew the advisory guidelines range or had heard either party’s argument regarding the sentence. Although we recognize that the court’s references to the ten-year mandatory minimum stemmed from a desire to ensure the defendant understood the minimum time he faced (he had previously been incorrectly informed that he faced a statutory minimum of five years), we agree with the government that the premature announcement of sentence constitutes procedural error that requires we vacate the sentence and remand for further proceedings.

September 29, 2010 in Booker in the Circuits, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Tuesday, September 28, 2010

Lots of crime (and some punishment) in big pile of cert grants from SCOTUS long conference

As detailed in this post at SCOTUSblog, the Supreme Court this morning granted certiorari in fourteen new cases. The full orders list is here, and I think more than a third of the cases involve criminal justice issues:

Freedman and Sykes are the cases that should most interest sentencing fans. Neither is a blockbuster-in-waiting, but both should provide some of the new (and old) Justices to showcase their current thinking on various federal sentencing issues.

September 28, 2010 in Implementing retroactively new USSC crack guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Sunday, September 26, 2010

Making the case for sentencing reform in the form of "Mandatory Minimalism"

I am pleased to see this new article, titled "Mandatory Minimalism," about reforming mandatory minimum sentencing statutes authored by Professors Paul Cassell and Erik Luna.   (Though Cassell was once a federal judge, luna is likely now more famous for once having been cited by Lindsay Lohan).  Here are two paragraphs from the article's introduction:

One of us (Cassell) is a former federal judge nominated by President George W. Bush, now a “conservative” scholar whose work is often supportive of law enforcement, the death penalty, and the rights of crime victims.  The other (Luna) is a “libertarian” who tends to be suspicious of government and adamant about abuses of power, including those by police and prosecutors, and his scholarship has expressed the need for wholesale criminal justice reform (especially in the federal system).  If we could find common ground on ways to modify federal mandatory minimums, we hoped that policymakers might share this agreement, perhaps sowing the seeds of further reforms.  Whether or not modest congressional action spurs greater feats, however, our proposal is far from death defying.  It is instead a fairly unpretentious yet principled modification.

Part I of this Article begins by briefly describing the background of mandatory minimum sentencing, including arguments for and against mandatory minimums and an analysis of their enactment in the federal system.  Part II considers the resilience of mandatory minimums from a behavioral science perspective and then sketches a potential process of reform in light of the relevant phenomena.  Part III discusses the concept of minimalism in philosophy and legal theory, proposing the idea of “political minimalism” as a justification for reform efforts that seeks consensus on basic principles accompanied by small legislative steps.  Part IV provides specific changes to federal law consistent with a minimalist approach to statutory modification. Finally, Part V offers some suggestions for further reforms, with the hope of inspiring dialogue on the propriety of legislatively compelled, judicially unavoidable punishment.

September 26, 2010 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (2) | TrackBack

Tuesday, September 21, 2010

Split Sixth Circuit upholds federal mandatory LWOP sentence based on priors committed when a juve

In a case involving another defendant named Graham, a split panel of the Sixth Circuit has upheld a mandatory minimum LWOP sentence against a challenge that seeks to extend the reach of the Supreme Court's Eighth Amendment work in Graham v. Florida.  Here is how the majority opinion (per Judge Moore) in US v. Graham, No. 08-5993 (6th Cir. Sept. 21, 2010) (available here) gets started:

Donald Graham, convicted of three counts of a seven-count indictment for crack-cocaine offenses under 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2, appeals from the district court’s denial of his Federal Rule of Criminal Procedure 29 motion for a judgment of acquittal, denial of his motion to disregard life sentence, and sentencing decision.  Graham’s main contention on appeal is that his life sentence, imposed for his third qualifying felony under 21 U.S.C. § 841(b)(1)(A), violates the Eighth Amendment to the U.S. Constitution.  Finding no reversible error, we affirm the district court’s rulings on Graham’s motions and his life sentence.

Here is how the dissenting opinion (per Judge Merritt) gets started:

My view in this case of first impression in this Circuit is that the sentencing of this nonviolent, 30-year-old petty drug trafficker to life imprisonment by using a juvenile conviction as a necessary third strike not only violates clear congressional intent revealed by clear rules of statutory construction but also violates sound principles of penological policy based on the Eighth Amendment values recently outlined by the Supreme Court in Graham v. Florida, 130 S. Ct. 2011 (2010).  I would have preferred that my colleagues in the majority acknowledge and address the arguments made here against the use of a juvenile conviction to send this nonviolent drug offender to prison for life.  Instead they have chosen to ignore those arguments.  I leave it to the readers to determine for themselves the usefulness and credibility of this kind of appellate decision making.

September 21, 2010 in Assessing Graham and its aftermath, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, September 20, 2010

Sixth Circuit summarily (and wrongly?) decides that sentencing changes in Fair Sentencing Act not applicable to pre-change crime

At the end of a seemingly minor opinion, the Sixth Circuit today in US v. Carradine, No. 08-3220 (6th Cir. Sept. 20, 2010) (available here), addresses a major issue for any and all defendants hoping to get the an immediate benefit from the new crack sentencing provisions passed by Congress in the Fair Sentencing Act.  Here is the panel's entire discussion of the issue:

On August 12, 2010 — well after this case had been fully briefed and submitted for decision — Carradine moved to file a supplemental brief, arguing that he is entitled to the benefit of a recently enacted statute, the Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372 (Aug. 3, 2010).  We granted the motion and accepted supplemental briefs from both parties.

This new statute, which amends the existing law, raises the threshold for imposition of a 60-month statutory minimum prison sentence from five (5) grams of crack cocaine to 28 grams. See id. at Sec. 2(a)(2) (amending 21 U.S.C. § 841(b)(1)(B)(iii)). Carradine had 19 grams of crack cocaine, so he would be subject to the statutory minimum under the old version but not under the new. Consequently, Carradine argues that the new version of the statute should apply.

The “general savings statute,” 1 U.S.C. § 109, requires us to apply the penalties in place at the time the crime was committed, unless the new enactment expressly provides for its own retroactive application. Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 660 (1974); United States v. Avila-Anguiano, 609 F.3d 1046, 1050 (9th Cir. 2010); United States v. Smith, 354 F.3d 171, 174 (2d Cir. 2003); Korshin v. Comm’r, 91 F.3d 670, 673-74 (4th Cir. 1996).

The new law at issue here, the Fair Sentencing Act of 2010, contains no express statement that it is retroactive nor can we infer any such express intent from its plain language. Consequently, we must apply the penalty provision in place at the time Carradine committed the crime in question.  We affirm the district court’s imposition of the 60-month mandatory minimum sentence.

I have provided links to the key statutory provision and Supreme Court ruling that the Sixth Circuit panel relies upon for its important (and first impression?) ruling.  I do so because I am not 100% sure that these controlling authorities must be read in the way the Sixth Circuit contends because both address criminal provisions that have been repealed.  Critically, the Fair Sentencing Act did not repeal anything, it merely amended (by raising) the trigger quantities for the application of a mandatory prison term.

Some may contend that the difference between "repealing" a criminal statute and "amending" when certain sentences apply is just a matter of semantics and that the Sixth Circuit's work in Carradine is sound.  But one need not be a pedantic textualist to appreciate that there also may be a meaningful substantive distinction between a wholesale repeal of a criminal statute and a statutory amendment that merely revise the applicability of a restriction on the discretionary authority of a judge at sentencing.

I do not mean to assert that the Sixth Circuit panel's work here in Carradine is obviously wrong.  I do mean to assert, however, that the issue is not as clear-cut as the Carradine panel opinion suggests and that, at least in my mind, this important issue merits greater discussion and fuller analysis than gets provided by the Sixth Circuit panel here.

September 20, 2010 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (15) | TrackBack

Tuesday, August 17, 2010

State judge frees defendant subject to harshest aspect of California's three-strikes law

This Los Angeles Times article report on a notable new development in a notable three-strikes sentencing case from California.  The piece is headlined "Finally, a convict's third strike is struck: Gregory Taylor was a homeless man when he was arrested for trying to break into a church. His third strike brought a harsh sentence — but now he's going free, thanks to two Stanford law students." Here is how the piece starts:

Gregory Taylor's case was so egregious that an appellate justice likened him to Jean Valjean of Victor Hugo's "Les Miserables," so disconcerting that he became the centerpiece of debate in a district attorney's race, so bewildering that a chapter was devoted to his story in a 2005 book about California's three-strikes law.

Taylor was a 35-year-old homeless man when he was arrested in 1997 for attempting to break into the kitchen of a Catholic church that served the poor, where he was a regular and occasionally volunteered.  He told the arresting officer that he was hungry and wanted something to eat.  A priest from the church testified in his defense, saying Taylor was welcome there.

Because of his two prior felony convictions — snatching a purse containing $10 and a bus pass, and an unarmed, unsuccessful attempt to rob a man on the street — Taylor was sentenced to 25 years to life in prison for his third strike.

Yet until a couple of Stanford law students took up his case earlier this year, Taylor languished in a San Luis Obispo prison with little hope of getting out: He was not eligible for parole until 2022.

On Monday, a Los Angeles County Superior Court judge ordered Taylor's release, ruling on a petition of habeas corpus filed by the students.  The pair were part of a Stanford Law School project devoted to helping three-strikes inmates serving lengthy sentences for minor third offenses.  So far, the project has won the release of 14 inmates, said Michael Romano, its director.

"Today we are able to correct the past and strike his third strike," Judge Peter Espinoza said in his ruling vacating Taylor's original sentence and giving him a new sentence of eight years, which he has already served.  He said the law, passed in 1994, produced what he called "unintended and unanticipated consequences" in its early years.

New evidence presented by the students of Taylor's character, medical history and exposure to domestic violence and trauma as a child meant that he falls "outside the spirit of the three-strikes law," the judge said.

August 17, 2010 in Mandatory minimum sentencing statutes, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (17) | TrackBack

Tuesday, August 10, 2010

Interesting ground-level perspective on needed NJ reforms for sentencing and corrections

The Trenton Times has this interesting new op-ed headlined "To curb corrections costs, reconsider sentencing, parole."  The piece is authored by David Shebses, who worked for many years at the East Jersey State Prison "as supervisor for education and then as an executive assistant to the warden."  Here are excerpts from his commentary:

[A] little historical perspective.  When I started my career in 1970, New Jersey's population was just under 7.2 million, and roughly 5,500 people were incarcerated in the state's nine institutions....

[Thereafter] mandatory minimums were used on crimes such as murder, assault and robbery.  As the 1980s unfolded, the Legislature decided to apply this sentencing concept to drug-related crimes, so that by 1990, the prison population exploded.  It rose more than fivefold, from 5,500 inmates in 1970 to more than 30,000 inmates in 1990, while New Jersey's population had only risen by 6 percent, to 7.73 million....

[I] suggest the following:

1) Eliminate mandatory minimum sentences for all crimes....

2) Stop incarcerating most people who are convicted of using most drugs....

3) Abolish the parole system.  Parole is based on a false premise, namely, that it is possible to predict human behavior.  It is not possible....

4) Instead of parole, put money and staff into the county probation departments and have the state assume the responsibilities for both probation and re-entry programs....

5) Consider that how long an inmate serves should be a matter of statute and trial....

Incarceration is expensive and necessary for violent and repetitive offenders.  But we have too many people incarcerated due to the mandatory minimum system and the zero-tolerance philosophy that underlies it.  Many of these people just don't need to be in jail, and their incarceration costs the rest of us a fortune.

August 10, 2010 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Monday, August 02, 2010

Massachusetts partially reforms its mandatory drug sentencing laws

As detailed in this press release from Families Against Mandatory Minimums, over the weekend "Massachusetts lawmakers passed legislation that includes limited but promising reform of the state’s harsh mandatory drug sentencing laws." Here are the specifics:

Drug offenders who are serving mandatory minimum sentences at county Houses of Correction will have greater access to parole and at an earlier date. However, the bill that lawmakers voted on did not include two reforms previously endorsed by the Senate: allowing drug offenders in state prisons the same access to parole, and allowing all drug offenders to be eligible for work release programs. Under current state law, drug offenders serving mandatory minimum sentences are frequently barred from either parole eligibility or work release programs, even if such restrictions force them to leave prison without supervision or job skills....

The bill will allow drug offenders in county Houses of Correction to be eligible for parole after they serve one-half of their sentence (the same as other county prisoners who are eligible for parole), unless one or more “aggravating factors” apply: they used violence or guns when committing the drug offense, they directed the drug activities of others, or they sold drugs to minors or used minors in drug transactions. The bill applies to those who are currently incarcerated, as well as to those sentenced in the future.

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

Thursday, July 29, 2010

A few not-so-accurate headlines about Congress's work on crack sentences

One can find lots and lots of effective traditional media coverage of yesterday's work by Congress to finally pass a bill to reform crack mandatory minimum sentencing provisions (basics here).  However, in looking over some of the headlines in Google news, I saw a few that were a bit misleading:

As informed readers know, Congress has only reduced the crack/powder disparity in the Fair Sentencing Act of 2010, it has not eliminated the disparity.  Also, in my view, it is not accurate to call what Congress has done will bring "big changes" to crack sentencing.  I see the FSA of 2010 as more of a tweak than a big change, and a lot of the long-term impact will depend on how the US Sentencing Commission makes corresponding changes in the crack guidelines.

This effective commentary by Chris Weigant over at the Huffington Post, which is headlined "Cocaine Sentencing Injustice Slightly Lessened," describes the reality of the statutory changes and also captures many of my feelings about these sentencing developments.  It ends this way:

This is landmark legislation, I realize.  Moving away from the "lock them all up" mentality, for politicians, is remarkable simply because it does not happen often (read: "ever").  Backing down on Draconian drug laws is not exactly atop the priorities list of many politicians, because the ads attacking them for doing so just about write themselves.  So I do applaud Congress for addressing the issue (both houses have now passed the bill).

But, at the same time, what they've done is to change the ratio of unfairness from one-hundred-to-one (500:5) down to roughly eighteen-to-one (500:28).  The penalties for crack and powder cocaine are still nowhere near parity.  Someone possessing an ounce of crack will get a much stricter punishment than someone possessing a full pound of powder cocaine.  It's as if we decided to make coffee illegal, and instituted mandatory minimums for possessing five cups of coffee -- while at the same time applying the same penalty only if you were caught with 500 cups of espresso.  Or made water illegal, but set a much higher bar for possessing 500 ice cubes.  Either way, it is the same substance.  The only thing which differs is the penalty for the "lower class" version of the substance.

Meaning that even the newly-passed bill is not exactly an exercise in equality under the law. Not by a factor of eighteen.  President Obama, to his credit, called for true fairness on the campaign trail, when he said that the disparity in crack/powder cocaine punishment "cannot be justified and should be eliminated."  He was right.  It should be eliminated.  Either start jailing a lot more suburban white kids (which would cause its own kind of outcry), or stop jailing inner-city folks disproportionally.  Lower the bar for powder, or raise the bar for crack, in other words, until the penalty is equalized.

While Congress did not have the courage of their convictions to do so this time around, they did take a baby step in the right direction.  This is momentous, because it is the first such step in this direction in three or four decades.  But I still can't help but wish that Congress had tackled the problem not in such an incrementalist political fashion, but rather as an issue of rank inequality to be rectified by removing all of the legally-codified unfairness at once -- to restore the concept of equal treatment under the law, rather than perpetuating (if slightly lessening) the inherent injustice which still exists.

July 29, 2010 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Race, Class, and Gender, Who Sentences? | Permalink | Comments (19) | TrackBack

Wednesday, July 28, 2010

Questions and more questions as a reformed crack bill heads to the President's desk

As reported here, the House of Representatives, by voice vote, finally approved the compromise federal sentencing bill reducing the disparities between mandatory crack and powder cocaine sentences, sending the measure to President Barack Obama for his signature.   Here is the text of the bill known as the Fair Sentencing Act of 2010 ("FSA"), and the folks at FAMM have this terrific resource page providing lots and lots of information about the bill and its potential impact.  But I still have lots and lots of questions as the bill head's to the President's desk:

1.  Will the US Sentencing Commission be able to make all the needed follow-up amendments no later within the 90 days reguired by the FSA?

2.  How many crack sentencings have been put on hold awaiting the expected passage of this bill and should they stay on hold while the USSC works on the emergency amendments?

3.  Will defendants who have already been sentenced for crack offenses find any ways to get any retroactive benefit from the FSA and/or the USSC amendments to follow?

4.  Does the passage of this bill (and also yesterday's House passage of the National Criminal Justice Commission Act) suggest we have finally hit a tipping point in the war on drugs and/or the tough on crime era?

I could go on and on, but I suspect readers may have some additional question to add to the mix.

July 28, 2010 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (3) | TrackBack

House of Representatives seems poised to finally pass federal crack/powder disparity reform bill

As detailed in this new AP article, which is headlined "Congress seeks to narrow gap in cocaine sentences," it appears that the House of Representatives is today going to approve the compromise crack sentencing reform bill that made it though the Senate back in March. Here are the basics:

The House planned to vote Wednesday on the measure that would change the 1986 law under which a person convicted of crack cocaine possession gets the same mandatory prison term as someone with 100 times the same amount of powder cocaine.  The legislation would reduce that ratio to about 18-1.

The Senate has passed the legislation. House approval would send it to President Barack Obama.  "There is no law enforcement or sentencing rationale for the current disparity between crack and cocaine powder offenses," Attorney General Eric Holder said when the Senate acted in March....

Under current law, possession of 5 grams of crack triggers a mandatory minimum five-year prison sentence.  The same mandatory sentence applies to a person convicted of trafficking 500 grams of powder cocaine.  The proposed legislation would apply the five-year term to someone with 28 grams, or an ounce, of crack.  It would be the first time in 40 years that Congress has repealed a mandatory minimum sentence.

All reports suggest that President Obama would sign this compromise bill, and I assume he would do so ASAP. 

The exact timing of this bill becoming law is important for lots or reasons, especially because I believe the bill gives the US Sentencing Commission only 90 days to develop needed guideline amendments in response to the law.  That, in turn, means the USSC may have to, before the end of October, significantly rewrite a significant portion of the current drug sentencing guidelines.  And that, in turn, means everyone (and their lawyers) with current or pending federal drug offense sentences will have a lot more to be watching over the next few months than just the baseball pennant races.

Some recent related posts:

UPDATE: It is official, as detailed in this new AP article on the House vote today:

The House, by voice vote, approved a bill reducing the disparities between mandatory crack and powder cocaine sentences, sending the measure to President Barack Obama for his signature. During his presidential campaign, Obama said that the wide gap in sentencing "cannot be justified and should be eliminated." The Senate passed the bill in March....

"For Congress to take a step toward saying 'we have made a mistake' and this sentence is too severe ... is really remarkable," said Virginia Sloan, president of the Constitution Project, which in studies of sentencing practices has referred to crack cocaine mandates as a "'poster child' for the injustices of mandatory sentencing." Under current law, possession of five grams of crack triggers a mandatory minimum five-year prison sentence. The same mandatory sentence applies to a person convicted of trafficking 500 grams of powder cocaine....

The Congressional Budget Office said the bill would save the government $42 million over five years because of the reduction in prison populations.

Rep. Lamar Smith of Texas, the top Republican on the Judiciary Committee, was the only lawmaker to speak against the bill, saying the 1986 law was enacted at a time when the crack cocaine epidemic was bringing a sharp spike in violence to minority communities and it would be a mistake to change it. "Why do we want to risk another surge of addiction and violence by reducing penalties?" he asked. "Why are we coddling some of the most dangerous drug traffickers in America?"

Rep. Bobby Scott, D-Va., noted that the bill also requires the sentencing commission to significantly increase penalties for drug violations involving violence. "This way the defendant is sentenced for what he or she actually did, not the form of cocaine involved," Scott said.

July 28, 2010 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (8) | TrackBack

Sunday, July 11, 2010

Pennsylvania sentencing commission urging repeal of school zone mandatory sentencing provisions

As detailed in this local article, the Pennsylvania Commission on Sentencing is"is recommending that legislators repeal the drug-free school zone mandatory sentences and let judges to determine the sentence based on already-existing guidelines that would include increased time." Here are more details:

The commission said mandatory sentences are used inconsistently across the state, said Mark Bergstrom, executive director of the commission.  Some district attorneys invoke it every time. Others rarely use it, he said.

In addition, there's no required link between the drug deals and the school zone, Bergstrom said. The zone extends 1,000 feet from the edge of the school property, so it includes people living blocks away.

York County District Attorney Tom Kearney said his office determineswhether to invoke the mandatory sentence based on the facts of the case.  It's a tool in his arsenal that he likes to have....

"I like the flexibility the legislation has provided to me," he said.  "What we want to get are the bad guys."  However, Kearney said he can understand the concern about the lack of consistency in the use of drug-free school zone mandatory sentences across the state....

In general, legislators will need to address mandatory minimum sentences for first-time, non-violent offenders because the state prison population keeps going up while crime has been decreasing, state Rep. Eugene DePasquale, D-West Manchester, said.  However, he cautions against lessening any offense in a school zone because it puts children in danger....

Two local defense attorneys ... said the mandatory minimum drug-free school zone sentences can be unfair, and they hope the legislature will repeal it. "It just takes too much power away from the judge," defense attorney Richard Robinson said....

Defense attorney Christopher Ferro said he agrees that it takes the discretion out of a judge's hands to judge each defendant on the merits of the facts.  It's an arbitrary distinction of where the school zone is, and it doesn't really take into account whether there were minors involved. "It's justice by tape measure, which makes no sense," he said.

One of the most unfair aspects is that the law disproportionately affects defendants in urban areas because of the number of school buildings. "It's almost impossible to go anywhere in York City, and you're not in a drug-free school zone," he said.

July 11, 2010 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Tuesday, June 22, 2010

Times Square bomber pleads guilty to all counts, including those with mandatory life terms

This morning's New York Times has this report, headlined "Guilty Plea in Times Square Bomb Plot," on the latest suprising legal turn in a high-profile terror prosecution.  Here are the particulars:

The suspect in the failed Times Square bombing pleaded guilty on Monday, an abrupt and expedited end to a terrorism case that extended to Pakistan and an Islamic militant group there.  The defendant, Faisal Shahzad, 30, listened as each of 10 counts was read to him in Federal District Court in Manhattan, and indicated he understood the charges and penalties he faced.

Mr. Shahzad recounted how and why he conceived the plot, traveling to Pakistan last year, joining the Taliban and receiving training in how to construct a bomb.  And despite his admission of guilt and his extended cooperation with the authorities since his arrest, Mr. Shahzad was unapologetic, characterizing himself as “part of the answer to the U.S. terrorizing the Muslim nations and the Muslim people.”

“I want to plead guilty, and I’m going to plead guilty 100 times over,” he said, “because until the hour the U.S. pulls its forces from Iraq and Afghanistan, and stops the drone strikes in Somalia and Yemen and in Pakistan, and stops the occupation of Muslim lands, and stops killing the Muslims, and stops reporting the Muslims to its government, we will be attacking U.S., and I plead guilty to that.”...

Wearing a white head covering, Mr. Shahzad stood for more than half an hour answering the judge’s questions about his motivations, his background and even his family. “I had a wife and two beautiful kids,” he said, adding that they had returned to Pakistan to be with his parents.

And it was seemingly with equanimity that Mr. Shahzad spoke of his plan to detonate a car bomb in New York City. “I chose the center of Times Square,” he explained.  “Were there a lot of people in the street?” Judge Cedarbaum asked. “Yes,” Mr. Shahzad replied. “Obviously the time, it was evening, and obviously it was a Saturday, so that’s the time I chose.”

“You wanted to injure a lot of people?” the judge asked.  Mr. Shahzad said that he had, that he wanted “to injure people or kill people.”   But he said “one has to understand where I’m coming from.” He said that he considered himself “a Muslim soldier,” and that United States and NATO forces had attacked Muslim lands.

Judge Cedarbaum interjected: “But not the people who were walking in Times Square that night. Did you look around to see who they were?”  Mr. Shahzad replied, “Well, the people select the government; we consider them all the same.”

“Including the children?” the judge asked.  “Well, the drone hits in Afghanistan and Iraq,” Mr. Shahzad replied, “they don’t see children; they don’t see anybody.  They kill women, children.  They kill everybody.  It’s a war.  And in war, they kill people. They’re killing all Muslims.”

The guilty plea was consistent with Mr. Shahzad’s behavior since his May 3 arrest, when the authorities say he began cooperating with them for more than two weeks without counsel and waived his Miranda rights.  One question was whether Mr. Shahzad would seek leniency in sentencing in return for his assistance.

The answer seemed to come after the hearing, when the United States attorney, Preet Bharara, released a letter that had been sent to Mr. Shahzad’s lawyers.  It made clear that there was no plea deal, and that in choosing to plead guilty to all 10 counts, Mr. Shahzad faced a mandatory life term, the maximum sentence for which he is eligible.

“Faisal Shahzad plotted and launched an attack that could have led to serious loss of life,” Attorney General Eric H. Holder Jr. said, “and today the American criminal justice system ensured that he will pay the price for his actions.”

Mr. Bharara said the investigation was continuing; his office refused to comment on whether Mr. Shahzad was continuing to cooperate.  Judge Cedarbaum scheduled the sentencing for Oct. 5. Mr. Shahzad’s lawyer, Philip L. Weinstein, had no comment.

June 22, 2010 in Mandatory minimum sentencing statutes, Offense Characteristics | Permalink | Comments (1) | TrackBack