Friday, December 11, 2009

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

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

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

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

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

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

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

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

Tuesday, December 08, 2009

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

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

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

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

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

Download Former NJ AG Letter re drug mandatories

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

Thursday, November 12, 2009

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

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

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

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

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

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

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

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

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

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

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

Some related recent posts:

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

Sunday, November 01, 2009

State judge calls for repeal of school-zone mandatory sentences

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

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

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

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

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

Recent related post:

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

Friday, October 23, 2009

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

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

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

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

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

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

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

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

Sunday, October 18, 2009

New report on mandatory minimum sentences from Pennsylvania Commission on Sentencing

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

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

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

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

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

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

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

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

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

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

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

Thursday, October 15, 2009

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

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

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

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

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

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

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

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

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

Tuesday, October 13, 2009

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

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

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

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

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

Tuesday, October 06, 2009

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

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

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

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

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

Thursday, October 01, 2009

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

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

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

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

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

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

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

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

Wednesday, September 30, 2009

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

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

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

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

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

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

Saturday, September 19, 2009

Lots of useful information in latest FAMMGram

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

Check it out.

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

Thursday, September 10, 2009

FAMM survey on views about sentencing reform

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

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

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

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

Monday, September 07, 2009

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

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

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

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

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

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

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

Friday, July 24, 2009

"Momentum Builds to Equalize Cocaine Penalties"

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

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

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

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

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

Wednesday, July 22, 2009

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

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

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

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

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

Tuesday, July 21, 2009

US Sentencing Commission's "Overview of Statutory Mandatory Minimum Sentencing"

As previously noted here, the House Judiciary's Subcommittee on Crime, Terrorism, and Homeland Security last week held a hearing on "Mandatory Minimums and Unintended Consequences."  Now I just discovered that the US Sentencing Commission's website has posted this new lengthy document which is titled "Overview of Statutory Mandatory Minimum Sentencing."  Here is how the USSC describes the document on its website's front-page:

On July 10, 2009, the Commission provided a statistical overview of statutory mandatory minimum sentencing using fiscal year 2008 data to the House Judiciary Committee's Subcommittee on Crime, Terrorism and Homeland Security in light of its July 14, 2009 hearing entitled "Mandatory Minimums and Unintended Consequences."

Here is how the document itself starts:

The Commission has identified at least 171 individual mandatory minimum provisions currently in the federal criminal statutes.  In the Commission’s fiscal year 2008 datafile, there were 31,239 counts of conviction that carried a mandatory minimum term of imprisonment.  Because an offender may be sentenced for multiple counts of conviction that carry mandatory minimum penalties, these 31,239 counts of conviction exceed the total number of offenders (21,023 offenders, as reported below) who were convicted of statutes carrying such penalties.

Of these 31,239 counts of conviction, the overwhelming majority (90.7%) were for drug offenses (24,789 counts of conviction, or 79.4%) and firearms offenses (3,527 counts of conviction, or 11.3%).  Most of the 171 mandatory minimum provisions rarely, if ever, were used in fiscal year 2008, with 68 such provisions not used at all.

Some related recent posts:

July 21, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (0) | TrackBack

Tuesday, July 14, 2009

Can concerns for dollars and cents finally bring sense to federal mandatory minimum sentencing statutes?

As previously previewed here, the House Judiciary's Subcommittee on Crime, Terrorism, and Homeland Security this morning held a hearing this morning on "Mandatory Minimums and Unintended Consequences."  I cannot yet find any press reports on the hearing, but all of the written testimony from the five witnesses can be found at this House webpage

All the written testimony is worth checking out, but I found these written remarks of Grover G. Norquist, who is President of Americans for Tax Reform, to be the most refreshing.  It highlights the latest way in which the economic of harsh sentencing helps create a new push for needed reforms.  Here are excerpts from his Norquist's written testimony:

To begin with, [the] pedigree [of mandatory minimum sentencing laws] makes them highly suspect. As with so many other federal programs, mandatory minimums were hatched by the Left, later embraced by the Right, and have been maintained by a bipartisan majority....

We should know by now to beware of easy solutions.  As H.L. Mencken said, “There is always an easy solution to every human problem — neat, plausible, and wrong.”  Today, a generation later, it is increasingly clear that adoption of mandatory minimums, while a neat and plausible response to sentencing disparities, was the wrong solution....

The biggest problem from the perspective of the taxpayer, however, is that mandatory minimum sentencing policies have proven prohibitively expensive.  In 2008, American taxpayers spent over $5.4 billion on federal prisons, a 925 percent increase since 1982.

This explosion in costs is driven by the expanded use of prison sentences for drug crimes and longer sentences required by mandatory minimums.  Drug offenders are the largest category of offenders entering federal prisons each year.  One third of all individuals sentenced in federal courts each year are drug offenders.  And these convicts are getting long sentences.  In 2008, more than two-thirds of all drug offenders receive a mandatory minimum sentence, with most receiving a ten-year minimum.

The jump in corrections costs at the state level has been equally dramatic.  State corrections spending has ballooned from $6 billion in 1982 to over $50 billion in 2008.  These skyrocketing costs are hitting states at a time when they are already being forced to cut back due to the bad economy.

The benefits, if any, of mandatory minimum sentences do not justify this burden to taxpayers. Illegal drug use rates are relatively stable, not shrinking.  It appears that mandatory minimums have become a sort of poor man’s Prohibition: a grossly simplistic and ineffectual government response to a problem that has been around longer than our government itself.

Yet all is not lost.  Center-right governors like Rick Perry of Texas are trying new approaches.  A couple of years ago, Texas started sending low-level, first-time felony drug users to mandatory drug treatment rather than prison.  Before Governor Perry, it was Republican Governor — John Engler of Michigan — who signed into law the first major repeal of state mandatory minimum sentences.  Engler’s action saved Michigan taxpayers $40 million in prison costs without jeopardizing public safety.

In closing, I want to note that questioning the wisdom of mandatory minimums has nothing to do with being soft on crime.  I believe in strong and swift punishment when appropriate. I support the death penalty for murderers.  But the government has a responsibility to use taxpayer money wisely.  Viewed through the skeptical eye I train on all other government programs, I have concluded that mandatory minimum sentencing policies are not worth the high cost to America’s taxpayers.

The folks at Families Against Mandatory Minimums have this new press release about the House hearings; it makes much of Norquist's written testimony and is headed "FAMM, Unusual Allies Call for Sentencing Reform."

Some related old and new posts:

July 14, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (5) | TrackBack

Sunday, July 12, 2009

House hearing on "Mandatory Minimums and Unintended Consequences"

Though nearly all eyes this week will be on the Senate Judiciary Committee as the confirmation hearings for Judge Sotomayor get started, sentencing fans should be sure to take note of a hearing scheduled for Tuesday in the House. Specifically, as detailed here, on Tuesday morning the House Judiciary's Subcommittee on Crime, Terrorism, and Homeland Security will hold a hearing on "Mandatory Minimums and Unintended Consequences."

Though no official witness list has yet been posted, this item from FAMM indicates that FAMM president Julie Stewart is scheduled to testify.  I hope and expect that some representative from the Department of Justice will also be testifying, though I am not quite sure what to hope and expect to hear from DOJ on mandatory minimums. 

Though AG Holder recently gave a fairly progressive speech on criminal justice issues (details here), he has previously express at least modest support for some mandatory minimum sentencing laws.  And, though President Obama has expressed concerns about mandatory minimums, his Administration has to date largely avoided expressly condemning or condoning such laws.  Perhaps something consequential might get said by the DOJ rep at this upcoming hearing.

July 12, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (6) | TrackBack

Wednesday, May 13, 2009

Spring issue of FAMMGram now available

I just received via e-mail this note from the folks at FAMM detailing the contents of its latest newsletter:

The FAMMGram still includes all of the latest sentencing information you expect from FAMM. Click here to thumb through the pages, which you can download and print.
Top stories include:
Stars align for sentencing reform -- From the White House to State Houses across the country, sentencing reform is becoming a reality.
Seizing the moment for justice -- Federal lawmakers push legislation to address the sentencing and criminal justice crisis.
New York leads the way for states embracing sentencing reform -- Lawmakers can no longer ignore skyrocketing prison populations, high costs and ruined lives.

May 13, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (0) | TrackBack

Tuesday, May 12, 2009

A pair of notable and important rulings in another sad child porn downloading case

I just received a copy of a pair of notable (and notably brief) rulings from a federal district court here in Ohio in yet another sad child porn downloading case.  The two rulings in US v. Szymanski, No. 3:08 CR 417 (N.D. Ohio 2009), can be downloaded below, and they address  (1) the authority of a district court to sentence below the statutory mandatory minimum in a receipt/possession child porn case, and (2) the first has to do with the authority of a district court to stay a sentence pending appeal.  Here are snippets from each opinion that spotlights some of the reasons they are so interesting:

The specific question raised in the instant case is whether this Court can sentence Defendant below the mandatory minimum of five years, or stated differently, whether the mandatory minimum is grossly disproportionate to the crime.  A district court is not authorized to sentence a defendant below the statutory mandatory minimum unless the Government files a substantial assistance motion pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, or a defendant falls within the safety valve of 18 U.S.C. § 3553(f).  However, neither of these “outs” are available in a child pornography case under 18 U.S.C. § 2252.....

Defendant argues that the mandatory minimum sentencing scheme of § 2252(b) conflicts with the Court’s mandate to fashion a sentence under § 3553(a).  It appears the Sixth Circuit has not yet evaluated the potential conflict between mandatory minimum sentences and the factors under § 3553(a) through the lens of the Supreme Court’s decision in Booker and its progeny.  This conflict is important because, in this case, the Court finds that the mandatory minimum exceeds a fair and just sentence that is sufficient but not greater than necessary to comply with § 3553(a)....

The problem [of unwarranted disparities] is especially apparent in a case like this where the differences between the receipt of child pornography and the possession of child pornography is a distinction without a difference.  Yet one carries a mandatory minimum of five years while the other has none.  Conduct which could apply to either statute necessarily results in the potential for gross disparities in sentences....

This tension between possession and receipt effectively places in the prosecutor the ability to determine the defendant’s sentence, a role reserved for the judiciary.  In short, a prosecutor through a charging decision controls the sentencing range in cases involving the possession and/or receipt of child pornography.  This Court believes the Sixth Circuit should determine, at least in this context, whether mandatory minimum sentences violate the separation of powers since the advent of Booker and is progeny.

Download Szymanski Sentencing Memorandum

A defendant can be released pending appeal under 18 U.S.C. § 3145(c) if the Court finds “it is clearly shown that there are exceptional reasons why such person’s detention would not be appropriate.”...  For the above reasons, as well as those expressed at the Sentencing Hearing and in the other post-hearing Orders which detail the reasons for a downward variance, this Court finds it appropriate under the circumstances of this case to stay execution of the sentence pending appeal. Defense counsel shall notify this Court upon the conclusion of all appeals at which time Defendant shall report either to the Marshals for service of his sentence or to this Court for resentencing.

Download Szymanski Order re Release Pending Appeal

May 12, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (16) | TrackBack

Wednesday, April 29, 2009

Two SCOTUS losses for criminal defendants

As detailed in this SCOTUSblog post, the Supreme Court handed down two opinions this morning and they are both losses for defendants:

The Court has released the opinion in Kansas v. Ventris (07-1356) . The decision below, which held for the defendant, is reversed and remanded in a 7-2 opinion by Justice Scalia, available here.  Justice Stevens filed a dissenting opinion joined by Justice Ginsburg.

The Court has released the opinion in Dean v. United States (08-5274). The decision below, which held for the United States, is affirmed in a 7-2 opinion by Chief Justice Roberts, available here. Justice Stevens filed a dissenting opinion and Justice Breyer filed a dissenting opinion.

Dean involves a sentencing opinion dealing with a mandatory minimum sentencing provision that I will likely blog about later today.  Readers are welcome to get a running start in the comments.

April 29, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (15) | TrackBack

Watching the webcast of the Senate crack disparity hearing

As detailed in this official notice, the Senate Committee on the Judiciary, Subcommittee on Crime and Drugs will hold a hearing at 10am this morning entitled "Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity."  Though I do not plan to live-blog the event, I do plan to try to watch the live webcast from this link.  And I hope readers feel free to use the comments to provide real-time commentary or any notable moments from the event.

Some recent related posts:

UPDATE:  As I am watching Assistant Attorney General Lanny Breuer testify via webcast, I received an e-mail from FAMM titled "Today is an historic day for sentencing reform!," and it starts this way:

This morning, the U.S. Department of Justice is announcing that it supports replacing the controversial 100:1 sentencing disparity between crack and powder cocaine with an even 1:1 ratio.  DOJ's announcement, included in testimony to be delivered on Capitol Hill by Assistant Attorney General Lanny Breuer, marks the first time the Justice Department has publicly endorsed equalization of the penalties between crack and powder cocaine.... FAMM member Cedric Parker is the final witness at the hearing.

The significance of today's announcement cannot be overstated.  For years, FAMM has argued that individualized and proportionate sentencing does not jeopardize public safety. Today, the U.S. Justice Department — the nation's top law enforcement agency, the overseer of every federal prosecutor in the United States — agreed with us. DOJ's new position on crack penalties acknowledges that we need not sacrifice safety for sentencing fairness.  The nation's top cops say we can have both!

And I just heard AAG Breuer state that DOJ now wants "this Congress to completely eliminate the crack/powder disparity."  He also has says that AG Holder has created a working group on federal sentencing that will work toward a better sentencing structure for how to deal with these matters.

MORE:  Here are early reports on this hearing from the Washington Post and the Wall Street Journal.

April 29, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (1) | TrackBack

Tuesday, April 28, 2009

Is the new DOJ about to crack the stalemate over fixing the crack disparity?

For many years, politicians and lawyers on both sides of the political aisle have been saying that the notorious 100-to-1 crack/powder ratio in federal sentencing statutes was unjust and should be fixed.  But, especially in the legislative and executive branches, there has been mostly talk and little action on this front.  (Some in the federal judiciary, thanks to Booker and Kimbrough and the new USSC reduced and retroactive crack guidelines, have been working toward means to better achieve case-specific justice even while other branches have avoided dealing with these issues on a systematic, system-wide basis.)

With a new DOJ sheriff in town, however, there is now good reason for those eager for reform to be more hopeful than cynical.  And, though there has been little formal action on this issue to date, a hearing in Congress scheduled for Wednesday — which just happens to be President Obama's 100th day — could mark an important turning point in both the debate and the practical realities of crack sentencing. 

As detailed in this official notice, the Senate Committee on the Judiciary, Subcommittee on Crime and Drugs will hold a hearing entitled "Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity" on Wednesday morning.  And, as indicated in this new CQ Politics article, some inside-the-Beltway folks think that something big and consequential might be brewing:

Troubled by the disproportionate effects of the sentencing disparity, members of Congress as well as federal officials have been working in recent years to fix the problem.  In 2007, then-Sen. Joseph R. Biden Jr. , D-Del., introduced legislation that would end harsher sentencing for crack vs. powder cocaine.  A co-signer of the legislation was Barack Obama , D-Ill.

Now that Obama and Biden are in the White House, those who advocate for fair and proportionate sentencing laws say they have good reason to hope that Congress will put sentences for crack and cocaine on equal footing.

The Justice Department is sending Lanny Breuer, chief of its criminal division, to testify at Wednesday’s hearing, which is a positive signal from the Obama administration, said Mary Price, vice president and general counsel for Families Against Mandatory Minimums.

In this arena, I am disinclined to predict or even expect change until I see it with my own eyes.  But I think it is quite understandable for the folks at FAMM and at The Sentencing Project to be especially hopeful that a new DOJ might help finally forge a new path.  Stay tuned.

Some recent related posts:

April 28, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (4) | TrackBack

Friday, April 24, 2009

Notable (and major?) child porn ruling from the Second Circuit

Regular readers may recall US District Judge Jack Weinstein's fascinating Polizzi decision last year, in which he ruled that he should have informed the jury of which counts in a child pornography case carry mandatory minimum sentences (basics here, early commentary here, amicus briefing here).  Today the Second Circuit reversed Judge Weinstein's ruling, but seems to do so in a way that could have a much bigger impact than if they had just affirmed.  Here is the Second Circuit's summary of its ruling in US v. Polouizzi, No. 08-1830 (2d Cir. April 24, 2009) (available here):

Appeal from a judgment entered April 9, 2008, in the United States District Court for the Eastern District of New York (Weinstein, J.), convicting defendant of eleven counts of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B).  Cross-appeal from an order and judgment entered April 9, 2008, granting defendant’s motion pursuant to Federal Rule of Criminal Procedure 33 for a new trial on twelve counts charging receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2).  Because the defendant’s possession as charged in the indictment constituted a single unit of prosecution and because the district court erred by granting defendant’s motion for a new trial on the counts charging receipt of child pornography, we vacate the April 9, 2008 order of the district court granting defendant’s motion for a new trial and remand this case to the district court to vacate all but one of the possession convictions and for further proceedings consistent with this opinion.

Here is the key language of what strikes me as a very important holding (and a footnote with caveats) in this decision:

Based on the clear language of the statute, we conclude that Congress intended to subject a person who simultaneously possesses multiple books, magazines, periodicals, films, video tapes, or other matter containing a visual depiction of child pornography to only one conviction under 18 U.S.C. § 2252(a)(4)(B). [FN5]

[FN5]We note that Polizzi was charged with possessing, on a single date, eleven computer files stored on three hard drives housed in two adjacent rooms in a single premises, his detached garage. Moreover, the government has not maintained, either below or on appeal, that Polizzi’s multiple possession convictions under § 2252(a)(4)(B) could be sustained because Polizzi “acquired possession of the [prohibited matters] on different occasions, or that he stored them at different sites.” United States v. Olmeda, 461 F.3d 271, 280 (2d Cir. 2006) (construing 18 U.S.C. § 922(g)). Thus, we need not decide whether § 2252(a)(4)(B) could be construed to support multiple possession convictions if such a theory were pleaded and proved. See Chiarella v. United States, 445 U.S. 222, 236-37 (1980) (noting that “we cannot affirm a criminal conviction on the basis of a theory not presented to the jury”); United States v. Mittelstaedt, 31 F.3d 1208, 1220 (same).

Because I haveto take advantage of the first perfect spring day in Columbus to go to the driving range, I likely will not have sufficient time this afternoon to completely consume and comment on this notable Second Circuit ruling.  But I am hopeful that others will use the comments to help me figure out if the decision is a big deal or really just a big dodge from the Second Circuit.

Related posts on Polizzi and the challenges of child porn downloading cases:

UPDATE:  The Second Circuit decision also includes an interesting discussion of whether and when it might be appropriate to advise a jury of the mandatory minimum sentencing terms associated with certain charges.  This post at New York Federal Criminal Practice effectively discusses this issue.

April 24, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (7) | TrackBack

Monday, March 16, 2009

Another notable new little data report from the USSC

Lately the US Sentencing Commission has been producing a series of interesting little reports on interesting little federal sentencing topics.  Specifically, just in the last few months we have gotten new (and reader-friendly) reports on federal escape offenses and on the growth of the federal criminal caseload and on alternative sentencing in the federal system.  And now today I see up on the USSC's website this latest addition to its releasing of notable little reports:

Impact of Prior Minor Offenses on Eligibility for Safety Valve:  This report provides an analysis of the role of convictions for prior minor offenses in the sentences of federal offenders.  offenders from receiving a sentence below the statutory mandatory minimum punishments for drug trafficking crimes.  The publication utilizes data drawn from a large research sample of offenders sentenced in fiscal year 2006.

Here is the full text of the conclusion of this latest report:

Prior convictions for minor offenses have a minimal impact on safety valve eligibility. Some offenders are subject to an increase in their criminal history score and become ineligible for safety valve relief as a result of their prior minor offenses.  However, these offenders comprise a very small percentage of the drug trafficking offender population.  Therefore, the notion that including minor offenses in the criminal history calculation causes wide spread inequity in sentencing is an overstatement.  Of the 24,483 drug trafficking offenders in the sample, only 260 (1.1%) were disqualified from eligibility for the safety valve provision due to minor offenses in their criminal history. For the vast majority of drug trafficking offenders, past convictions for minor offenses have no effect on the punishment they receive for their later federal crime.

March 16, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (4) | TrackBack

Thursday, March 05, 2009

Oral argument transcripts in sentencing cases now available

Though it took a while for them both to appear, the oral argument transcripts in the sentencing cases argued before the Supreme Court yesterday (background here) are now available:

March 5, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (3) | TrackBack

Notable Second Circuit ruling on interplay of mandatory minimum statutes

The Second Circuit handed down a notable ruling today in US v. Williams, 07-2436 (2d Cir. Mar. 5, 2009) (available here), which address the application of federal mandatory minimum sentencing statutes. Here is how the opinion starts:

Leon Williams appeals from a June 1, 2007, judgment of conviction and sentence of the United States District Court for the Southern District of New York (Sand, J.).  Williams was convicted of a drug trafficking crime which carried a ten-year mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A), and possession of a firearm in furtherance of that drug trafficking crime, an offense which carried a five-year mandatory minimum consecutive sentence “[e]xcept to the extent that a greater minimum sentence is otherwise provided by . . . any other provision of law” under 18 U.S.C. § 924(c)(1)(A)(i). In this opinion, we address whether the district court erred in imposing the five-year mandatory minimum consecutive sentence under Section 924(c)(1)(A)(i) even though a greater minimum sentence was provided for the predicate drug trafficking crime.  In United States v. Whitley, 529 F.3d 150 (2d Cir. 2008), reh’g denied, 540 F.3d 87 (2d Cir. 2008), we held that the mandatory minimum sentence under Section 924(c)(1)(A) was inapplicable where the defendant was subject to a longer mandatory minimum sentence for a career criminal firearm possession violation.  We now hold that the mandatory minimum sentence under Section 924(c)(1)(A) is also inapplicable where the defendant is subject to a longer mandatory minimum sentence for a drug trafficking offense that is part of the same criminal transaction or set of operative facts as the firearm offense.

March 5, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (0) | TrackBack

Wednesday, March 04, 2009

Federal sentencing statute day at the Supreme Court

Continuing to work through a docket heavy with federal statutory interpretation cases involving sentencing issue, the Supreme Court today hears these two cases (as described here by SCOTUSblog):

First, the Court will hear argument in Abuelhawa v. United States (08-192), on whether a person who uses a cell phone to buy drugs solely for personal use (a misdemeanor) can be charged with the separate crime of using a phone to facilitate the sale of drugs (a felony).  Sri Srinivasan of O’Melveny & Myers in Washington, DC will argue for Salman Khade Abuelhawa. Assistant Solicitor General Eric Miller will argue for the United States.

At 11 a.m., the Court will hear argument in Dean v. United States (08-5274), involving the ten-year mandatory minimum sentence for discharging a gun during a violent crime.  Scott J. Forster of Calhoun, Georgia, will argue for Christopher Michael Dean.  Assistant Solicitor General Deanne Maynard will argue for the United States.

If both cases produce narrow opinions (which is what I expect), it seems unlikely that either case will prove to be a sentencing blockbuster.  But perhaps one or more Justices will see these cases as an opportunity to address federal statutory sentencing issues more broadly.

March 4, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (2) | TrackBack

Thursday, February 26, 2009

Justice Breyer talking up Rule of Lenity when interpreting statutes with mandatory minimum sentencing terms

As detailed in this recent post, the Supreme Court yesterday heard oral argument in Flores-Figueroa v. United States, which deals with the reach of the federal aggravated identity theft statute.  When first scanning the oral argument transcript, these comments from Justice Breyer jumped off the page:

In the case of mandatory-minimum sentences, there is a particularly strong argument for a Rule of Lenity with bite.  And that is because mandatory minimums, given the human condition, inevitably throw some people into the box who shouldn't be there.  And if this person should be there and we put him outside, the judge could give him the same sentence anyway.

So the harm by mistakenly throwing a person outside the box through the Rule of Lenity to the government is small.  The harm to the individual by wrongly throwing him into the box is great.  The Rule of Lenity is, therefore, limited to a very small subset of cases where it has particular force, but this is one of them.

Oral argument transcript in Flores-Figueroa at 42. 

I sure hope these sentiments make their way into whatever opinion is written in Flores-Figueroa.  I have long thought that various defendant-oriented statutory canons and constitutional principles should have more force and impact in cases involving mandatory minimum sentencing terms.  It is nice to see Justice Breyer articulate this point at oral argument, and it would be very valuable to have this idea find expression in the Court's jurisprudence.

How Appealing has at this link some of the major press coverage of the entire argument in Flores-Figueroa.

February 26, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (1) | TrackBack

Wednesday, February 18, 2009

House Republicans file brief in support of 30-year mandatory minimum sentence in Farley

Regular readers may recall a notable district court opinion from last September (discussed in this post), which found unconstitutional a mandatory minimum term of 30 years imprisonment for a defendant who travelled across state lines in an effort to engage in sexual activity with a fictious ten-year old.  The case, US v. Farley, is now on appeal before the Eleventh Circuit, and this new post from the CQ Legal Beat reports on a notable new filing in this case:

A group of House Republicans filed a brief Wednesday challenging a federal District Court's ruling that a 30-year mandatory minimum prison sentence was a cruel and unusual punishment for a man convicted of crossing state lines to have sex with a minor.

That automatic mandatory minimum prison sentence was included in the Adam Walsh Act passed by Congress to combat child sex abuse. But in September 2008, Judge Beverly B. Martin of the Northern District of Georgia ruled that penalty was unconstitutional as applied to Kelly Farley, a 39-year-old Texas man convicted of making plans to molest a 10-year-old girl.

In the brief filed with the U.S. Court of Appeals for the 11th Circuit, the GOP lawmakers say they "are particularly concerned with the lack of respect and improper deference afforded to Congress by the district court in the case" and suggest the lower court's ruling "threatens to abridge Congress' authority to impose punishment that it deems appropriate to the corresponding offense."

Thanks to the folks at CQ, the full brief can be accessed at this link.  Fascinating stuff. 

February 18, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (2) | TrackBack

Wednesday, January 21, 2009

One measure of the impact of the ACCA ruling in Chambers

As noted here, last week the Supreme Court held in Chambers that a “failure to report” for penal confinement is not a “‘violent felony’” within the terms of the Armed Career Criminal Act.  For one measure of the import of that ruling, check out today's order list fromt the Supreme Court. 

I count 27 cases that are GVR'ed today based in part on Chambers.  And if there are that many cases that already made it into the SCOTUS cert pile, there must be dozens (perhaps hundreds) more cases in the pipeline that could be impacted by Chambers.

January 21, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (0) | TrackBack

Thursday, January 15, 2009

Fifth Circuit laments, but affirms, another crazy-long mandatory federal sentence

The Fifth Circuit today affirms a very long mandatory federal sentence in US v. Sterling, No. 07-30001 (5th Cir. Jan 15, 2009) (available here), but the panel was clearly troubled by what it felt forced by the law to do.  The first two paragraphs of the opinion provide the startling basics:

We are required to affirm a conviction for offenses that led inexorably to a 99-year sentence of imprisonment for a young, addicted drug dealer.  This sentence exceeds, in this court’s experience, what has been meted out to some drug trafficking kingpins.  Why the Government chose to pile on its indictment against Sterling, especially after he pled guilty to the Mullins incident, is not ascertainable from the Pre-Sentence Report (“PSR”).  This court is obliged to apply the law, but we expect that the prosecutor’s nearly unfettered discretion will not be abused. Here, we are not so confident of that precondition to justice.

Based on his recanted confession, a jury convicted Justin Paul Sterling (“Sterling”) of three counts of distribution of cocaine base, three counts of possession of a firearm in furtherance of a drug trafficking crime, and one count of possession of a firearm with an obliterated serial number. Sterling appeals the drug trafficking and firearm convictions, arguing that his conviction rested solely on his uncorroborated confession.  He further argues that because under the Government’s theory he did not receive the firearms at the time he purchased them with drugs, he did not possess the firearms in furtherance of a drug trafficking crime.  Because other evidence corroborated Sterling’s confession and showed that he possessed firearms in furtherance of a drug trafficking crime, we AFFIRM.

January 15, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (11) | TrackBack

Wednesday, January 14, 2009

New FAMMGram includes slate of federal sentencing recommendations

Families Against Mandatory Minimums has its latest newsletter, its Winter 2009 FAMMGram, available on-line at this link.  The FAMM newsletter is full of lots of interesting items, including this slate of federal sentencing recommendations (which are explained in full in the FAMMGram on page 5):

1.  NEAR TERM: Strategic reforms

2.  INTERMEDIATE: Create a mandatory minimum safety valve....

3.  LONG TERM: Remove mandatory minimums from the federal criminal code....

January 14, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (0) | TrackBack

Friday, December 12, 2008

Maine judge finds mandatory sentence constitutionally excessive in unusual setting

This local AP story reports on an interesting state sentencing ruling:

A Maine judge says the state’s mandatory sentencing law for habitual driving offenders was too harsh to impose on a Vietnam War veteran convicted of continuing to drive after losing his license as a habitual offender.  Franklin County Superior Court Justice Michaela Murphy sentenced 60-year-old Gerald Gilman to 90 days in jail, instead of two years required by law.

Murphy wrote that a two-year sentence mandated by the state’s so-called "Tina’s Law" because of Gilman’s past drunken-driving offenses was "constitutionally excessive."  Prosecutor Andrew Robinson called Murphy’s sentence illegal and said it will be appealed.

This press report suggests there was a written decision in this case, which I will post if I can find it.

December 12, 2008 in Mandatory minimum sentencing statutes | Permalink | Comments (0) | TrackBack

Wednesday, December 03, 2008

"Main Threat to Burress Is a Sentencing Law"

03weapon_600b Today's must-read is this terrific piece by Michael Schmidt in the New York Times that provides some of the back story on the mandatory minimum sentencing law that may make it very hard for Plaxico Burress to avoid jail time in the state pen for his (seemingly minor?) gun possession crime.  Here are snippets from a piece that all sentencing fans should read in full:

[P]erhaps more important than the question of whether Burress ever plays for the Giants again is the question of whether his future will include time in prison. [L]egislation ... signed into law in November 2006 by then-Governor George E. Pataki ... eliminated a provision that gave judges the option of not imposing jail time on people found guilty of illegally possessing a loaded firearm.

Instead, the three-and-a-half year minimum sentence was established. As a result, legal experts said Tuesday, Burress may have little wiggle room as he tries to avoid prison time. “Even if he pleads down, he can only plead down one count and he would still face a minimum of two years in prison,” said Robert C. Gottlieb, a New York-based criminal defense lawyer and a former prosecutor in the Manhattan district attorney’s office. “The other wiggle room is that he could try and prevent the district attorney’s office from charging him with this crime and charge him with a lesser crime.”

In fact, John M. Caher, a spokesman for the New York State Division of Criminal Justice Services, said that fewer than 10 percent of the people in New York City who were charged with criminal possession of a weapon — the charge Burress is facing — were convicted of that charge and that many ended up being convicted of a lesser charge.

However, Gottlieb noted that the public attention made it unlikely that prosecutors would accept a lesser charge. Another option, some experts said, would be for Burress to provide authorities with information that would lead them to prosecute others, although that seems unlikely considering the narrow circumstances of his case.

As [Burress's lawyer Benjamin] Brafman begins to plot his legal strategy, he cannot help but think back to that argument [he had with an NYC lawyer] nearly two years ago. “The point I made then, and I will continue to make, is that laws involving criminal justice that do not have exceptions for extraordinary circumstances are inappropriate in a democracy where we pride ourselves on fair play,” Brafman said in a telephone interview Tuesday.... 

On Monday, Bloomberg drew attention to the issue when he sharply criticized Burress and said that the authorities should prosecute him to the fullest extent of the law.  Brafman said that Bloomberg’s comments damaged Burress’s legal standing.  “When you have the mayor of New York demanding the maximum sentence in a case which has just begun and nobody has been convicted, it certainly doesn’t help,” Brafman said. “Mr. Bloomberg may have cost my client his job and cost him an ability to get a fair trial.” 

This article confirms some of what I expressed in my first post on the Burress case  — namely that Mayor Bloomberg's comments on Monday may ensure that Plaxico may soon become a poster-child and a great test case for groups like Families Against Mandatory Minimums that have long argued about the unfairness of mandatory minimum sentencing terms (especially for first offenders).

The only important point missing from the NYTimes article (and from Brafman early efforts to develop pro-Burress public sentiments) is the Heller Second Amendment issue I often champion.  As I noted in my prior post, if the Second Amendment is applied to the states after Heller (which seems very likely) and if Burress says he carries a gun for personal self-defense (which seems very plausible), anyone with a serious commitment to the right of persons to possess a gun for self-defense (like those at the NRA) should be very troubled by the notion that Burress is facing years in prison for merely possessing a gun.

December 3, 2008 in Celebrity sentencings, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Second Amendment issues | Permalink | Comments (0) | TrackBack

Monday, December 01, 2008

NYC Mayor Bloomberg pushing for Plaxico Burress to get at least 3½ years in state prison, leading me to many questions

Thanks to the apparent foolishness of a prominent NFL player, the folks at Families Against Mandatory Minimums and at the National Rifle Association might have a new high-profile poster-child for their very different public policy causes.  I am referencing, of course, the case involving New York Giants wide-receiver Plaxico Burress, whose major criminal law problems are well summarized in these snippets of this New York Times article (emphasis added):

Giants receiver Plaxico Burress was arraigned Monday in a Manhattan criminal court, charged with two separate counts of criminal possession of a handgun in the second degree after accidentally shooting himself in the thigh three days ago at a Midtown nightclub.

He faces a mandatory sentence of 3½ years in state prison, with a maximum of 15 years, on each count....

After a long day — during which Burress spent about five hours at the New York City Police Department’s 17th Precinct station house, where he likely posed for mug shots, was fingerprinted and sat for interviews with detectives — details of the shooting became clearer.

The police said that Burress arrived at the Latin Quarter nightclub in Manhattan on Friday at 11:30 p.m. with four others, including teammates linebacker Antonio Pierce and Derrick Ward. The other two members of their party were not football players, according to police. At 12:05 a.m., a single gunshot is heard.

The criminal complaint, released by prosecutors Monday, said that an onlooker saw Burress near the V.I.P. area of the club holding a drink in his left hand and fidgeting his right hand in the area of the waistline of his pants. The witness then heard a single “pop” sound before hearing Burress say, “Take me to the hospital.”

Burress was on the ground, with his legs shaking, when a bloody gun — a .40-caliber Glock pistol — fell out of his pant leg and onto the floor, the onlooker said.  Later, Burress, who does not have a permit to carry a handgun in New York City, was treated and released at a hospital before returning to his home in Totowa, N.J.

On Monday, Mayor Michael R. Bloomberg harshly criticized Burress for carrying an illegal handgun; New York Presbyterian Hospital for failing to call the police of his gun-related injury, as city law requires; and the New York Giants, which also neglected to notify the authorities.

“Our children are getting killed with guns in the streets.  Our police officers are getting killed with guns in the hands of criminals, and because of that, we got the State Legislature to pass a law that if you carry a loaded handgun, you get automatically 3½ years in the slammer,” Bloomberg said, speaking to reporters....  “I don’t think that anybody should be exempt from that, and I think it would be an outrage if we didn’t prosecute to the fullest extent of the law, particularly people who live in the public domain, make their living because of their visibility; they are the role models for our kids.”

Bloomberg said that the police did not find out about the incident until it was reported on TV, and that the Giants should have immediately notified the authorities of the shooting.  He said the team had a responsibility to do so if their players want to be role models to the public....

Bloomberg also criticized the hospital for failing to call the police. “I think also it is just outrage that the hospital didn’t do what they’re legally required to do,” he said. “It’s a misdemeanor, it’s a chargeable offense and I think that the district attorney should certainly go after the management of this hospital.”

Wow!  Though I do not teach my upper-level sentencing course until next semester, this high-profile case, with its many notable participants and many possible legal issues, sounds like a problem I might give on my final exam.  Consider these questions right off the bat:

1.  In light of the apparently undisputed facts, is there any legally justifiable way for NY state prosecutors to avoid seeking to convict Burress of the state crime which carries a mandatory minimum sentence of 3½ years in state prison?

2.  Can and should Burress and his legal team raise a Heller Second Amendment right of self-defense claim in response to his criminal charges?  Assuming the Second Amendment gets applied to the states (which seems very likely) and assuming Burress says he carries his gun for personal self-defense (which seems very plausible), anyone who talks seriously about a fundamental right of self-defense (like those at the NRA) ought to be looking to give Burress some help in this case.

3.  Is Mayor Bloomberg already making it easier for Burress and his legal team (A) to argue he cannot get a fair trial in NYC, and/or (B) to suggest to the jury (directly or indirectly) that it should consider nullification in this case simply to avoid forcing Burress to go to state prison for 3½ years?

4.  Can and should Burress and his legal team raise a head-on due process (or cruel and unusual punishment) constitutional challenge to the statutory mandatory minimum sentence in this case?  In light of President-Elect Obama's stated expression of concerns about mandatory minimum sentencing statutes and the Supreme Court's ever-evolving sentencing jurisprudence, the time might be ripe for lawyers at FAMM and other public policy groups to start making a full-scale legal attack on the very constitutionality of mandatory minimum sentencing provisions.  Perhaps this line of constitutional argument just got a prominent celebrity spokesman.

December 1, 2008 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Second Amendment issues | Permalink | Comments (20) | TrackBack

Wednesday, November 26, 2008

Georgia high court finds mandatory life term for failure to register unconstitutionally excessive

The Atlanta Journal-Constitution has this article reporting on an important ruling yesterday in Georgia. The article is headlined "State Supreme Court: Sentence for sex offenders overruled; Life in prison breaks Eighth Amendment," and its provides an effective and detailed summary of the court's work:

The Georgia Supreme Court on Tuesday struck down another provision of the state’s tough sex-offender law, calling mandatory life sentences for offenders who fail to register a second time “grossly disproportionate” punishment.

In a 6-1 decision, written by Justice Robert Benham, the court said the life sentence imposed upon 26-year-old Cedric Bradshaw of Statesboro violates the Eighth Amendment’s guarantee against cruel and unusual punishment. “We conclude the imposition of a sentence of life imprisonment is so harsh in comparison to the crime for which it was imposed that it is unconstitutional,” Benham wrote....

On Tuesday, the court ordered Bradshaw, who tried repeatedly to find a place to live without breaking the law, to be re-sentenced. His lawyer, circuit public defender Robert Persse, applauded the ruling. “The state’s penalty provision was excessive and clearly disproportionate to the offense in question,” he said....

In his ruling, Benham noted that someone convicted of voluntary manslaughter or aggravated assault with the intent to murder, rob or rape can receive a sentence as lenient as one year.

Benham also compared Georgia’s mandatory life term with punishment called for in 23 other states.  Of the others, three states call for a maximum punishment of two years; 12 call for sentences of up to five years; six provide maximum terms of 10 years; two allow up to 20 years; and New Hampshire calls for a minimum seven-year sentence, Benham wrote. “Georgia’s mandatory punishment of life imprisonment is the clear outlier, providing the harshest penalty and providing no sentencing discretion,” Benham wrote.  “This gross disparity between Georgia’s sentencing scheme and those of the other states reinforces the inference that [Bradshaw’s] crime and sentence are grossly disproportionate.”

Chief Justice Leah Ward Sears, in a concurring opinion, said life sentences “should be reserved for society’s most serious criminal offenders … Bradshaw’s failure to register as a sex offender, when his underlying crime only landed him in jail for five years, is not the kind of crime a civilized society ought to require him to pay for with his life.”

Justice George Carley issued the lone dissent, calling the decision a “monumental abuse of this court’s authority to determine the constitutionality of legislation.” The Legislature’s amendment in 2006 calling for the mandatory life term “constitutes the clearest and most objective evidence of how society views a punishment,” he wrote.

The Supreme Court of Georgia's ruling in Bradshaw v. State is available at this link.  Writing at Sex Crimes, Corey Yung here asserts that "the majority is exactly right on this one."  I concur and I hope this ruling will embolden other courts to be more deliberative in discharging the constitutional duty to assess whether and when extreme terms of imprisonment are constitutionally excessive. 

November 26, 2008 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Tuesday, November 18, 2008

A structural attack on mandatory minimum sentencing statutes

Writing for the Connecticut Law Tribune, Norm Pattis has this effective commentary headlined "Mandatory Sentences Lead To Major Injustices." The piece closes with this effective structural attack on mandatory minimum sentencing statutes:

Mandatory minimum sentences make a mockery of the separation of powers.  Lawmakers enact such legislation believing that they speak in the name of people who are sick and tired of coddling criminals.  Anger and passion demand action.  Lines get drawn.  But these lines become clubs wielded without discretion and review by members of the executive branch.

This isn't justice.  No one elects prosecutors.  They never appear before elected officials for reappointment decisions. They lack accountability.  Once a prosecutor has locked onto to a charge, no judge can dislodge him in the interest of justice.  And a law without sentencing guidelines blindly adheres to the fiction that one size fits all.  There are no safety valves for special cases; there are no downward departures for men and women deserving of consideration due to the sometimes special circumstances in their lives.

I am not a fan of judicial discretion.  But I trust a judge before whom I can appear and argue more than a lawmaker I will never meet.  And I trust most judges more than many prosecutors, who, by dint of our sentencing law have been made de facto kings of the courthouse.

Of course, in some states voters do elect their prosecutors.  But this does not undermine the broader applicability of the righteous concern expressed here about the extraordinary sentencing powers that mandatory minimum sentencing statutes give to prosecutors.  (Notably, prosecutors rarely deny that mandatory minimum sentencing statutes give them great charging and bargaining power, they just typically assert that they can and do use this power wisely.)

November 18, 2008 in Mandatory minimum sentencing statutes | Permalink | Comments (7) | TrackBack

Monday, June 23, 2008

Fifth Circuit begrudingly affirms looney mandatory sentence in Looney

With thanks to the folks who alerted me to the decision, I can encourage everyone to check out the Fifth Circuit's work today in US v. Looney, No. 06-10605 (5th Cir. June 23, 2008) (available here), in which the panel criticizes federal prosecutors for a stacked indictment which resulted in a functional mandatory life sentence 53-year-old woman's first offense.  Here are the key closing paragraphs from the per curiam opinion in Looney:

We have carefully considered all of Ms. Looney’s challenges to her sentence and can find no basis upon which to vacate any portion of it.  As we have noted, Ms. Looney was subject to a mandatory minimum sentence of forty years — essentially determined by Congress.  Although Congress established the mandatory minimum terms of imprisonment, and further provided that the firearms counts must be served consecutively, it is the prosecutor’s charging decision that is largely responsible for Ms. Looney’s ultimate sentence.  Instead of charging Ms. Looney with two separate § 924(c) offenses, the prosecutor might well have charged her with only one, which would have avoided triggering the twenty-five-year mandatory, consecutive sentence for the second firearm count.  The prosecutors also could have chosen to charge Ms. Looney with the drug offenses and requested a two-level enhancement under the Sentencing Guidelines based on the involvement of firearms with the offenses. Instead, the prosecutor exercised his discretion — rather poorly we think — to charge her with counts that would provide for what is, in effect, a life sentence for Ms. Looney.

We do not question the authority — or the wisdom — of Congress’s decision to punish severely individuals who possess weapons in furtherance of drug dealing.  Nor do we in any way minimize the seriousness of Ms. Looney’s offenses. Moreover, there is nothing legally improper about the prosecutors’ charging decisions with respect to Ms. Looney, nor about the practice of confecting an indictment that would provide for the largest mandatory sentence.  Nevertheless, we must observe that the power to use § 924(c) offenses, with their mandatory minimum consecutive sentences, is a potent weapon in the hands of the prosecutors, not only to impose extended sentences; it is also a powerful weapon that can be abused to force guilty pleas under the threat of an astonishingly long sentence.  For example, a defendant who sincerely and fervently believes in his innocence, and who has witnesses and other evidence that support his claim of innocence, could easily be pressured into pleading guilty under a plea agreement that eliminates the threat — rather than face the possibility of life imprisonment based on a prosecutor’s design of an indictment that charges and stacks mandatory minimum consecutive sentences. We merely observe that the possibility of abuse is present whenever prosecutors have virtually unlimited charging discretion and Congress has authorized mandatory, consecutive sentences.  We trust that the prosecutors in this Circuit are aware of the potency of this weapon and its potential for abuse, and that they exercise extreme caution in their use of it, all in the interests of justice and fairness.

June 23, 2008 in Mandatory minimum sentencing statutes | Permalink | Comments (8) | TrackBack

Thursday, June 19, 2008

A remarkable (failed) judicial effort to nullify a mandatory minimum sentence

A per curiam decision today from the Eleventh Circuit in US v. Castaing-Sosa, No. 07-15490 (11th Cir. June 19, 2008) (available here), is remarkable for many reasons.  Here are the snippets (with a few edits) that really caught my attention:

Sosa was arrested following an undercover investigation by multiple law enforcement agencies into a drug distribution ring operating in Orlando, Florida. Sosa worked for the drug distribution ring as a courier.

After Sosa pled guilty to the heroin conspiracy offense, the presentence investigation report calculated an advisory guidelines range of 97 to 121 months’ imprisonment.  On appeal, Sosa does not challenge these guidelines calculations...., but because the statutory mandatory minimum sentence for Sosa’s heroin conspiracy conviction is ten years’ (120 months’) imprisonment, Sosa ... arguing that [the application of the mandatory minimum term] violated the separation of powers doctrine and the Eighth Amendment’s prohibition on cruel and unusual punishment.  The government responded that the information Sosa had provided in his interview with the government had not risen to the level of substantial assistance and, thus, the government had not filed a motion pursuant to U.S.S.G. § 5K1.1 that would permit the district court to sentence Sosa below the statutory mandatory minimum.

After noting that Sosa was subject to a statutory mandatory minimum sentence of 120 months’ imprisonment, the district court nonetheless imposed an 80-month sentence.  The district court imposed a lesser sentence to avoid a disparity between Sosa’s sentence and those of his coconspirators who had received sentences below 90 months.  After imposing the 80-month sentence, the district court advised Sosa on the record that the sentence would be overturned if the government appealed, in which case Sosa would be required to serve the statutory mandatory minimum sentence, as follows:

Now, understand that if the government chooses to appeal this sentence, it will be reversed and you will have to serve your mandatory minimum sentence.   So it’s entirely up to the government at this point, but I am sentencing you to 80 months so that you fall in line with all of your other co-conspirators.

The government objected to the 80-month sentence because it was below the statutory mandatory minimum.  This appeal followed.

To the district court's credit, it correctly predicted that a government appeal would lead to a reversal.  In fact, the Eleventh Circuit writes a (surprisingly restrained) decision reversing the district court's clear effort to "nullify" the application of the statutory mandatory minimum.  But, to the extent the district court genuinely believed justice demanded an 80-month sentence here, I am troubled by the misguided (and ultimately ineffective) way that the court sought to achieve justice. 

I say this because a thoughtful judge could have — in my view, should have — required the Government to explain in greater detail why Sosa did not justify a 5K letter and/or have asked the Government why the court should not have constitutional doubts about the application of the severe mandatory minimum term under these circumstance.  Given recent Supreme Court rulings and many other recent legal developments, the district court might have developed any number of plausible constitutional arguments (including many beyond those raised by the defendant) for refusing to apply the applicable statutory mandatory minimum on these facts.

Alternatively, once the district court realized that a 10-year mandatory was going to be applicable, the court might have considered now refusing to accept the defendant's plea to counts that, in the district judge's view, required an unjust sentence.  Or the court might have considered some way of announcing alternative sentences in an effort to express its view that a sentence below the mandatory minimum would be more just.  But, much as I dislike the application of severe mandatory minimum sentencing terms, for rule-of-law reasons I am troubled that a sentencing judge would flagrantly disregard applicable law without providing a legally plausible justification for doing so and also say it is up to prosecutors to appeal simply to ensure applicable law is followed.

June 19, 2008 in Mandatory minimum sentencing statutes | Permalink | Comments (4) | TrackBack

Monday, April 21, 2008

Can we thank Judge Posner for the latest ACCA cert grant?

I see now from this post at SCOTUSblog that the Supreme Court's new ACCA case on its docket comes from the Seventh Circuit in a case in which, as detailed here, Judge Posner was in fine form.  The case is US v. Chambers, and SCOTUSblog as all the cert papers assembled here for those interested in seeing the back-story for the latest trip into ACCA-land.

April 21, 2008 in Mandatory minimum sentencing statutes | Permalink | Comments (3) | TrackBack

Wednesday, April 02, 2008

Judge Weinstein makes notable headlines with notable jury-based ruling

Famed EDNY Judge Jack Weinstein has found a creative, questionable and headline-making way to avoid the application of a mandatory minimum federal sentence in a child porn case.  Here are the headlines:

Here is the start of the Post article:

In a decision that turns hundreds of years of legal precedent on its head, a judge ruled yesterday that juries should be made aware of "harsh mandatory minimum" sentencing rules in certain cases.  Maverick Brooklyn federal Judge Jack Weinstein issued the ruling in a child-porn case over which he presided - chastising himself for not telling the jury that the defendant faced a minimum five-year sentence before it found him guilty.

The drastic ruling says juries should be told what sentences certain criminals face, especially if the prison terms are particularly long.  It attempts to reverse the long-standing rule that jurors not be given sentencing information so they can decide guilt or innocence, without letting the potential punishment color their thinking.

"The judge has gone out on a limb here," said a law-enforcement source. "There's clear case law that says the jury should not be informed about mandatory minimums."

April 2, 2008 in Mandatory minimum sentencing statutes, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (37) | TrackBack

Sunday, February 03, 2008

Is legislation to lower federal sentences a real possibility in 2008?

In this recent post, I hinted at my own pessimism about the prospects of legislation to lower federal sentences during an election year.  But this new article from the Houston Chronicle strike a distinctly more optimistic tone.  Here a excerpts:

The tough-on-crime crackdown of the 1980s and 1990s is getting a second look in Congress. Some lawmakers, including Houston Rep. Sheila Jackson Lee, are questioning whether the soaring incarceration rates brought about by changes in federal sentencing laws have actually deterred crimes....

Jackson Lee, who serves on the House Judiciary Committee's crime subcommittee, is part of the vanguard re-examining a criminal justice system that has seen the federal prison population double from 1.1 million inmates in 1990 to 2.3 million today [sic: these numbers are national incarceration, not the federal prison population]....

The momentum for change reaches beyond liberal lawmakers and left-leaning interest groups. The Supreme Court and the Sentencing Commission recently moved to give judges more discretion in sentencing crack cocaine offenders....

Rep. Lamar Smith of San Antonio, the top Republican on the Judiciary Committee, will be among those standing in Jackson Lee's way.  After the Sentencing Commission's decision to allow judges to retroactively reduce crack offenders' sentences slightly — though not less than the mandatory minimums — Smith introduced his own legislation seeking to block any early releases. "In addition to endangering our communities, allowing the early release of criminals back into society would cripple our re-entry programs by overburdening probation officers and flood the courts with additional litigation," Smith said....

Jackson Lee, who also is pushing to cut prison rates by half for nonviolent federal offenders who are over the age of 45 and have served at least 50 percent of their sentence, said she is hopeful that the new Democratic majority in Congress will be able to prevail on criminal justice changes.  "The question of liberty is so important to me, and the question of having faith in the integrity of the criminal justice system," she said. "There is a sense of urgency to make right which has been wrong, to improve what has not worked, and to find ways to rehabilitate, to protect the American public from crime but at the same time give people a second chance."  Her views are far from universally shared. Jackson Lee acknowledged the legislation faces a strong challenge, though the congresswoman said she has high hopes of getting it into law this year.

For lots and lots and lots of political and practical reasons, I doubt significant sentencing reforms will emerge from Congress in 2008.  But perhaps I am being too pessimistic at a time when everyone seems to be getting on the change bandwagon. 

February 3, 2008 in Federal Sentencing Guidelines, Legislative Reactions to Booker and Blakely, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11) | TrackBack

Monday, January 28, 2008

Examining the efficacy of state mandatory minimums

This local article provides is some encouraging news from Pennsylvania, as well as a game-plan many states should follow as budgets tighten and prison populations expand:

With many of its prisons near capacity, Pennsylvania is one of 18 states that is taking steps to reform its criminal justice system, according to a national report released last week. Pennsylvania lawmakers directed the state Sentencing Commission to study whether mandatory minimum sentences — long a hot-button issue between the judiciary and the Legislature — are effective.

"We want to try to determine the purpose of mandatories and see if those objectives have been achieved," said Mark Bergstrom, executive director of the Sentencing Commission. "Clearly we have to look at overcrowding — state and local numbers are going up; the Department of Corrections budget is $1.4 billion — but we can't risk public safety to do it."....

Experts applauded lawmakers' decision to consider changes to the system.  "I think it's absolutely brilliant news from the Legislature," said Al Blumstein, a criminology professor at Carnegie Mellon University. "During the crime concerns of the '80s and '90s, they passed mandatory sentences, particularly with drug offenses. The result is the criminal justice system is overburdened and it didn't do much about drug crime."  Blumstein said when older drug dealers and users are put away, younger ones quickly take their places on the streets....

State Rep. Frank Dermody, D-Oakmont, who chairs the Sentencing Commission, said forthcoming changes are not a guarantee. "Let's see what the results of the study bring," he said. "Public safety is always No. 1, but we want to get people out of jail who don't belong there."

Some recent related state sentencing posts:

January 28, 2008 in Mandatory minimum sentencing statutes | Permalink | Comments (0) | TrackBack

Thursday, January 24, 2008

Interesting "rule of lenity" arguments in new SCOTUS brief

As noted here at SCOTUSblog, the petitioner in Burgess v. United States, No. 06-11429 — a case concerning the application of a 20-year mandatory minimum sentence imposed under 21 U.S.C. § 841(b)(1)(A) — filed this merits brief earlier this week.  Though the main statutory interpretation issue in Burgess is quite technical, the brief is quite interesting (and was authored by a veritable SCOTUS dream team).  Of particular interest is the brief's fairly extended discussion of the "rule of lenity" and its application in this case.  Here is a summary of these points from the brief's "summary of the argument" section:

A criminal statute subject to two plausible constructions, one harsher than the other, must be resolved in favor of lenity.  Congress has legislated against the backdrop of the rule of lenity for generations, aware that when it intends to make previously innocent conduct criminal, or increase the penalty for previously illegal conduct, it must make that intention plain.  Strict application of the rule of lenity is especially appropriate in the context of mandatory minimum sentencing, which alters the traditional allocation of sentencing authority among the branches and where a mistaken interpretation can result in particularly severe consequences that may be, as a practical matter, difficult for Congress to correct.  On the other hand, there is every reason to believe that Congress stands at the ready to revise an unduly lenient construction, as the history of this sentencing provision illustrates.

January 24, 2008 in Mandatory minimum sentencing statutes | Permalink | Comments (1) | TrackBack

Sunday, January 06, 2008

Effective review of politics and prison populations

Writing in the Los Angeles imes, Joe Domanick has this effective op-ed headlined "Prisoners of panic: Media hype and political quick fixes have swelled our inmate population." Here are excerpts:

How much more folly, absurdity, fiscal irresponsibility and human tragedy will we endure before we stop tolerating the political pandering that has dictated our criminal justice law and policy over the last two decades?

The pattern has become all too clear. Our politicians, fearful of being labeled "soft on crime," react to sensationalistic coverage of a crime with knee-jerk, quick-fix answers. Only years later do the mistakes, false assumptions and unexpected consequences begin to emerge, and then the criminal justice system is forced to deal with the mess created by the bad lawmaking....

Today, Californians are still paying the price for [its severe three-strikes laws] and other like-minded laws, not just in the ruined and wasted lives of people sentenced under these laws, but in other ways. There are now tens of thousands of inmates in California convicted of nonviolent crimes and serving out long second- and third-strike sentences, as well as thousands more behind bars because minor crimes were turned into felonies with mandatory minimum sentences.

All these laws have contributed to severe overcrowding in the state's prisons -- as high as 200% of capacity -- that has produced conditions of such "extreme peril" for prisoners and guards that Gov. Arnold Schwarzenegger was forced to declare a systemwide state of emergency in 2006.... A large part of the problem is that the prison population is aging because inmates are serving the longer sentences approved by lawmakers, and with aging comes more medical problems....

Faced with the huge budget deficit and judicial threats to cap the state's prison population, Schwarzenegger's office has been floating the idea of early release for about 22,000 inmates convicted of nonviolent crimes.  That 13% cut in prisoners, however, would require legislative approval, something that is by no means certain. The story of crime and punishment in California -- and the country -- since the 1980s, after all, has been quick-fix answers fueled by media hype.  Let's hope that such proposals as releasing nonviolent inmates receive serious attention rather than panicky headlines that lead to bad criminal justice laws.

January 6, 2008 in Campaign 2008 and sentencing issues, Mandatory minimum sentencing statutes, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Thursday, December 20, 2007

Evolving images of a killer and the evolving Eighth Amendment

Pittman_chris_at_10 There are so many interesting facets of the Pittman case (first discussed here), which has now been brought to the Supreme Court.  This new National Law Journal article provides the basics and highlights the role of a law school clinic in bringing the case to the Supreme Court:

A group of University of Texas School of Law students has helped file a petition with the U.S. Supreme Court in hopes of getting a South Carolina teenager's sentence reviewed.  The petition, filed on Monday, asks the court to review the case of Christopher Pittman, who is serving a 30-year sentence without parole for murdering his grandparents when he was 12.  Five third-year law students from the school's Supreme Court Clinic in Austin teamed up with five public policy students and spent the semester working on the case.

Story_sentencingIn addition, as spotlighted in this post at Pharmalot, the Pittman case has already drawn plenty of attention from folks other than those concerned just with the operation of the criminal justice system:

[If the Supreme Court takes this case] another aspect is likely to get attention — Christopher Pittman was taking Zoloft at the time he used a shotgun to shoot his grandparents, and then set fire to their home in 2001.  During his trial four years later, his attorneys argued, unsuccessfully, that the rampage was heavily influenced by the antidepressant, which Pfizer has always denied....  Meanwhile, a [recent] Fox News program, Hannity’s America, ran a segment linking recent mass shootings by teenagers with antidepressants. The episode had its flaws — the reporter failed to include comment from anyone in pharma or at the FDA, and suggested a connection to the recent shooting at the Omaha shopping mall without offering any evidence. Nonetheless, these two items suggest the debate over the proper use of antidepressants won’t go away and, in fact, is likely to remain polarized for the foreseeable future.

Intake2While others may be primarily interested in the human and medical stories that surround this case, I am focused on legal issues concerning the interpretation and application of the Eighth Amendment in this (non-capital) context.  Of particular interest to me is how the Eighth Amendment is to be applied in non-capital cases in light of the Court's recent capital rulings in Roper and Atkins (and its forthcoming work in Baze).  Specifically, I wonder whether and how the legal concept of an "evolving national consensus" that was central in Roper and Atkins should be unpacked here.  Against this backdrop, I am especially intrigued by the different images of the defendant that can be in the mind's eye as one thinks about whether the sentence he received is unconstitutional because it would violate societal mores.  As a few shrewd commentors have already noted (and as the pictures in this post highlight) the evolving nature of a young man perhaps has already played a role in his fate, and could continue to play a role in the debate over this case.

December 20, 2007 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

NY Times editorial against mandatories

This morning's New York Times has this strong editorial, entitled "An Idea Whose Time Should Be Past," which calls for the elimination of all mandatory sentencing statutes.  Here are excerpts:

The mandatory sentencing craze that began in the 1970s was a public-policy disaster. It drove up inmate populations and corrections costs and forced the states to choose between building prisons and building schools or funding medical care for the indigent.  It filled the prisons to bursting with nonviolent drug offenders who would have been more cheaply and more appropriately dealt with through treatment. It tied the hands of judges and ruined countless young lives by mandating lengthy prison terms in cases where leniency was warranted. It undermined confidence in the fairness of the justice system by singling out poor and minority offenders while largely exempting the white and wealthy....

Nowhere is repeal of mandatory-sentencing policies more urgently needed than in New York, which sparked an unfortunate national trend when it passed its draconian Rockefeller drug laws in the 1970s. Local prosecutors tend to love this law because it allows them to bypass judges and decide unilaterally who goes to jail and for how long.

But the general public is increasingly skeptical of a system that railroads young, first-time offenders straight to prison with no hope of treatment or reprieve.  In an often-cited 2002 poll by The New York Times, for example, 79 percent of respondents favored changing the law to give judges control over sentencing. And 83 percent said that judges should be allowed to send low-level drug offenders to treatment instead of prison.

As I have suggested before, repealing and even resisting mandatory minimum sentences requires politicians to show courage and leadership to help the public understand the complicated but compelling reasons why crude mandatory sentencing provisions often do more harm than good in a criminal justice system.  I am hoping that, in the wake of the Supreme Court and the US Sentencing Commmission showing courage and leadership last week, some elected official will step up to the plate.

December 20, 2007 in Mandatory minimum sentencing statutes | Permalink | Comments (6) | TrackBack

Wednesday, December 05, 2007

Ninth Circuit has busy day dealing with sentencing technicalities

The Ninth Circuit has there decision today dealing with three different technical sentencing questions.  Based on a very quick scan, the ruling that looks most interesting is in US v. Macias-Valencia, No. 06-10711 (9th Cir. Dec. 5, 2007) (available here), which starts this way:

Does the mandatory minimum sentence of 10 years, prescribed by 21 U.S.C. § 841(b)(1)(A)(viii), apply to a conviction for conspiracy with intent to distribute, and attempted possession with intent to distribute, 50 grams or more of methamphetamine, even when no actual contraband was involved in the commission of the offense?  Joining the Sixth Circuit, we answer “yes.”

December 5, 2007 in Mandatory minimum sentencing statutes | Permalink | Comments (0) | TrackBack