Tuesday, August 06, 2013

Conservative group ALEC joins the growing calls for sentencing refom

As reported in this Daily Caller piece, headlined "Conservative group advocates sentencing reform,"a notable new public policy group has joined the chorus of right-leaning advocates for significant sentencing reforms. Here are the basics:

A major conservative policy organization has endorsed criminal justice reform, lending further bipartisan support to a bill in Congress that would lessen mandatory minimum sentencing for nonviolent offenses.

The American Legislative Exchange Council, a free-market advocacy group that works with legislators and businesses to craft model legislation, gave its approval to the Justice Safety Valve Act on Monday.

The bill would allow judges to depart from imposing mandatory minimum sentences on nonviolent criminals when they believe different sentences are appropriate. Such a policy would save money by ensuring that only truly dangerous criminals spend decades in prison on the taxpayer’s dime, wrote Cara Sullivan, a legislative analyst at ALEC.

“This helps ensure lengthy sentences and prison spaces are reserved for dangerous offenders, allowing states to focus their scarce public safety resources on offenders that are a real threat to the community,” she wrote in an email to The Daily Caller News Foundation. “This approach, as opposed to simply throwing more dollars at corrections, reduces prison overcrowding while still holding offenders accountable.”

Many of the people sentenced under mandatory minimums were convicted of selling drugs, and committed no violence. Some were found guilty of breaking federal marijuana laws, even though they resided in states where growing and selling marijuana are legal under state laws.

While many conservative lawmakers once held to a “tough on crime” approach to criminal sentencing, the inefficiency and financial waste of imposing harsh sentences on low-level drug offenders has pushed libertarian-leaning elements of the GOP to embrace the Justice Safety Valve Act.  Conservatives are also concerned that federal laws interfering with judges’ abilities to set appropriate sentences — and states’ rights — are just another example of overreach on the part of the Obama administration....

Families Against Mandatory Minimums, a criminal justice advocacy group, praised ALEC’s decision to add its voice to the call for sentencing reform. “There is nothing conservative about inefficient, one-size-fits-all sentencing laws that cost billions in tax dollars and offer no public safety benefit in return,” wrote Greg Newburn, Florida project director for FAMM, in an email to TheDC News Foundation. “ALEC’s adoption of a model safety valve reflects the growing consensus among conservative lawmakers that mandatory minimums are ripe for reform.”

Wow.  It would now seem that  it may only be Bill Otis (and, I fear, still some members of the Obama Administration) who resistant to serious efforts to reform federal sentencing statutes.

Some recent and older related posts about the new federal politics of sentencing:

August 6, 2013 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (23) | TrackBack

Thursday, August 01, 2013

Senators Durbin and Lee come together to introduce "Smarter Sentencing Act"

Lee official_photoAs reported via this press release from the offices of Senator Dick Durbin, another notable pair of Senators from the two parties have put aside other differences to come together to support and promote federal sentencing reform.  (Since the press release comes from Senator Durbin's office, I have Senator Lee's picture posted.)   Here are the basics:

With federal prison populations skyrocketing and nearly half of the nation’s federal inmates serving sentences for drug offenses, Assistant Majority Leader Dick Durbin (D-IL), Senator Mike Lee (R-UT) have introduced the Smarter Sentencing Act, to modernize our drug sentencing polices by giving federal judges more discretion in sentencing those convicted of non-violent offenses. Making these incremental and targeted changes could save taxpayers billions in the first years of enactment.

“Mandatory minimum sentences for non-violent drug offenses have played a huge role in the explosion of the U.S. prison population,” Durbin said. “Once seen as a strong deterrent, these mandatory sentences have too often been unfair, fiscally irresponsible and a threat to public safety. Given tight budgets and overcrowded prison cells, judges should be given the authority to conduct an individualized review in sentencing certain drug offenders and not be bound to outdated laws that have proven not to work and cost taxpayers billions.”

“Our current scheme of mandatory minimum sentences is irrational and wasteful,” Lee said. “By targeting particularly egregious mandatory minimums and returning discretion to federal judges in an incremental manner, the Smarter Sentencing Act takes an important step forward in reducing the financial and human cost of outdated and imprudent sentencing polices.”

The United States has seen a 500 percent increase in the number of inmates in federal custody over the last 30 years, in large part due to the increasing number and length of certain federal mandatory sentences. Mandatory sentences, particularly drug sentences, can force a judge to impose a one-size-fits-all sentence without taking into account the details of an individual case. Many of these sentences have disproportionately affected minority populations and helped foster deep distrust of the criminal justice system.

This large increase in prison populations has also put a strain on our prison infrastructure and federal budgets. The Bureau of Prisons is nearly 40 percent over capacity and this severe overcrowding puts inmates and guards at risk. There is more than 50 percent overcrowding at high-security facilities. This focus on incarceration is also diverting increasingly limited funds from law enforcement and crime prevention to housing inmates. It currently costs nearly $30,000 to house just one federal inmate for a year. There are currently more than 219,000 inmates in federal custody, nearly half of them serving sentences for drug offenses.

The bipartisan Durbin-Lee-Leahy bill is an incremental approach that does not abolish any mandatory sentences. Rather, it takes a studied and modest step in modernizing drug sentencing policy by:

• Modestly expanding the existing federal “safety valve”....

• Promoting sentencing consistent with the bipartisan Fair Sentencing Act: The bipartisan Fair Sentencing Act of 2010 – which was authored by Senator Durbin and unanimously passed the Senate before it was signed into law – reduced a decades-long sentencing disparity between crack and powder cocaine offenses. Unfortunately, because of the timing of their sentences, some individuals are still serving far-too-lengthy sentences that Congress has already determined are unjust and racially disparate. The Smarter Sentencing Act allows certain inmates sentenced under the pre-Fair Sentencing Act sentencing regime to petition for sentence reductions consistent with the Fair Sentencing Act and current law....

• Increasing individualized review for certain drug sentences: The Smarter Sentencing Act lowers certain drug mandatory minimums, allowing judges to determine, based on individual circumstances, when the harshest penalties should apply. The Act does not repeal any mandatory minimum sentences and does not lower the maximum sentences for these offenses....

The bipartisan Smarter Sentencing Act is supported by faith leaders from the National Association of Evangelicals to the United Methodist Church. It is supported by groups and individuals including Heritage Action, Justice Fellowship of Prison Fellowship Ministries, the ACLU, Grover Norquist, the National Organization of Black Law Enforcement Executives, the Leadership Conference on Civil and Human Rights, the NAACP, the Sentencing Project, Open Society Policy Center, the American Bar Association, NAACP Legal Defense and Educational Fund, the National Association of Criminal Defense Lawyers, Families Against Mandatory Minimums, the Constitution Project, Drug Policy Alliance, Brennan Center for Justice, and Lawyers’ Committee for Civil Rights Under Law.

I am going to need to see the text of this new bipartisan Smarter Sentencing Act before opining about whether it is a terrific reform proposal or just a very good one. But, even without seeing the specifics, I can note and praise the willingness and ability for these Senators, who likely do not agree on too many issues, coming together to give effect to their shared view that the federal sentencing system need to be made smarter.

Some recent and older related posts about the new federal politics of sentencing:

August 1, 2013 in Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (20) | TrackBack

Wednesday, July 17, 2013

"Former Federal Prosecutors Endorse Safety Valve: Support Grows for Mandatory Minimum Sentencing Reform"

The title of this post is the heading of this new press release from the folks at Families Against Mandatory Minimums. Here are excerpts:

A group of more than 50 former federal prosecutors and judges today sent a letter to Capitol Hill endorsing the Justice Safety Valve Act of 2013, legislation that authorizes judges to depart from a mandatory minimum sentence in cases where the minimum is not necessary to protect public safety and would be unjust given the facts and circumstances of the crime and defendant. Senators Rand Paul (R-KY) and Patrick Leahy (D-VT) introduced the Justice Safety Valve Act (S. 619) in the U.S. Senate, and Representatives Bobby Scott (D-VA) and Thomas Massie (R-KY) introduced the companion bill (H.R. 1695) in the U.S. House.

“The men and women who endorsed the bill today helped to make our country safer by prosecuting and sentencing dangerous criminals,” said FAMM President Julie Stewart. “They know that to improve public safety we must focus our scarce anti-crime resources on violent and repeat offenders.”

In their letters [available here and here] addressed to the Justice Safety Valve Act sponsors in the Senate and House, the former prosecutors and judges wrote:

As Congress looks for ways to improve upon recent gains in public safety, we believe that the reform in S. 619 would prove very valuable. … Under your legislation, dangerous criminals will continue to receive lengthy prison sentences.  For lower-level offenders facing a mandatory minimum sentence, however, courts will be given the power to impose a shorter sentence.  For example, a nonviolent drug seller facing a 10-year mandatory minimum might instead receive a sentence of seven or eight years if a court determines, after considering all the relevant facts, that the ten-year sentence is inappropriate and would punish the street seller more harshly than his more culpable codefendants.  In drug cases, for example, a court might determine that a shorter prison term combined with mandatory drug treatment would be more likely to prevent an individual from re-offending. …

We also support your bill because we believe that the money wasted on keeping nonviolent and nonthreatening offenders locked behind bars for years longer than necessary could be better spent on anti-crime programs that actually will enhance public safety.  This is especially true in the current budget climate.  We think public safety will be improved if limited government resources are targeted on prosecuting and incarcerating violent and repeat criminals.

Some recent and older related posts:

July 17, 2013 in Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8) | TrackBack

Friday, July 12, 2013

DOJ delivers important messages in annual letter to US Sentencing Commission

Fulfilling its statutory obligation to deliver comments to the US Sentencing Commission, the US Department of Justice yesterday sent this very interesting 18-page letter to the USSC.  The letter cover a lot of important ground in important ways, and here are a few paragraphs that struck me as especially noteworthy (with key emphasis added by me):

From page 3: "At the state level, leaders in and out of government have recognized both the costs and benefits of the sentencing reforms of the late 20th Century. From that recognition - derived from a variety of studies of these 20th Century reforms - a new transformation in sentencing and corrections policy is taking place in much of the country. The dichotomy of determinate and indeterminate sentencing is breaking down and is being replaced by a pragmatism that recognizes that (1) budgets are finite; (2) imprisonment is a power that should be exercised sparingly and only as necessary; and (3) while determinate sentencing elements do indeed promote some of the core purposes of sentencing, reducing reoffending and promoting effective reentry are also core goals that can be successfully achieved and must be included in any effective sentencing and corrections framework."

From page 7: "The Budget Control Act of 2011 sent a clear signal that the steady growth in the budgets of the Department of Justice, other federal enforcement agencies, and the federal courts experienced over the past 15 years has come to an end.  Before sequestration, overall budgets had mostly been flat over the past four years.  However, even then, as prison and detention spending had increased, other criminal justice spending, including aid to state and local enforcement and prevention and intervention programs, had decreased. In fact, the trend of greater prison spending crowding out other crucial justice investments goes back at least a decade and has caused a significant change in the distribution of discretionary funding among the Department's various activities.

"Now with the sequester, the challenges for federal criminal justice have increased dramatically and the choices we all face - Congress, the Judiciary, the Executive Branch - are that much clearer and more stark: control federal prison spending or see significant reductions in the resources available for all non-prison criminal justice areas. If the current spending trajectory continues and we do not reduce the prison population and prison spending, there will continue to be fewer and fewer prosecutors to bring charges, fewer agents to investigate federal crimes, less support to state and local criminal justice partners, less support to treatment, prevention and intervention programs, and cuts along a range of other criminal justice priorities."

From page 9: "The reforms we are focused on - and that we think the Commission can help bring about - are changes to statutory and guideline drug penalties; improving reentry programming and providing greater incentives to offenders to participate in these programs; and simplifying and reforming the guidelines to better meet all the goals of the Sentencing Reform Act, including controlling the prison population.  We believe drug penalties can be reformed, like many states have done, to focus severe penalties on serious and repeat drug traffickers, while providing alternatives or reduced sentences for non-violent, less serious offenders. We believe that both changes to the statutory minimum penalties in title 21 and changes to the so-called 'safety valve' exception to mandatory minimum penalties are needed.

"We are already working towards reforming some mandatory minimum laws along these lines - and along the lines suggested by the Commission in its report on the subject. Similarly, prison credits or other incentives can be reformed to promote more effective and efficient use of prison resources while simultaneously reducing reoffending. The President's last two budgets have included proposals in this area, and we think now is the time to enact them. In addition, we believe the guidelines can be reformed - by making them simpler - to reduce litigation and prison costs, reduce manipulation of sentences by litigants, and improve sentencing consistency."

July 12, 2013 in Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (30) | TrackBack

Wednesday, June 26, 2013

An argument that the "Leahy/Paul bill is a disaster" from Bill Otis

I was intrigued to see that frequent commentor and former Justice Department official Bill Otis has this lengthy new post over at Crime & Consequences explaining in detail why he believe that the Justice Safety Valve Act proposed by Senators Patrick Leahy and Rand Paul "is a disaster, both for US Attorneys Offices and, more importantly, for the country."  I recommend all readers head over to C&C to see all of what Bill has to say in opposition to a bill that would allow judges to sentence below applicable mandatory minimum statutes if and when they believed such a sentence would achieve the sentencing purposes Congress set forth in 3553(a).

To whet appettites, here are a few key sentences from a few the key paragraphs from Bill's commentary:

If adopted, some judges would continue to adhere to mandatory minimums, but some wouldn't. Judicial indiscipline would increase over time, just as the number and rate of non-government approved downward departures has increased over time since mandatory guidelines were overthrown eight years ago in Booker. For the reasons I shall now explain, the ensuing one-way ratchet downhill will produce at least three perverse results.

First, it will end the rule of law in sentencing. For those who believe that the rule of law is better than the rule of taste, this would be a loss of enormous magnitude....

The second perverse result is that this bill is certain to increase crime. One hardly need be a genius to understand that, when you have muggers, drug pushers and the rest of them in prison and off the streets, the streets are safer....

The third adverse effect of ending mandatory minimums is that it will increase the cost and litigiousness, and decrease the effectiveness, of the AUSA's work....

In a future post, I will explain why I think Bill's concerns are in some ways overstated and in other ways misguided.  But, perhaps more importantly, I am glad to see someone explain in detail the basis for possible opposition to the Justice Safety Valve Act.  And I hope that the debate over this important federal sentencing reform bill not only takes place on blogs, but also in the hall of Congress through formal hearings concerning the bill in the weeks and months ahead.

Some recent and older related posts:

June 26, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (33) | TrackBack

Tuesday, June 25, 2013

"Equal justice: An appeals court wisely rules on drug sentencing"

The title of this post is the headline of this notable new editorial appearing in today's Pittsburgh Post-Gazette discussing and praising last month's Sixth Circuit ruling in Blewett (basics here).   Here are excerpts:

In the nation's long, costly and practically futile war on drugs, severe sentencing disparities between crack and powder cocaine stand out as an egregious and misguided policy that was stoked by near-hysteria.

Convinced that crack cocaine was 100 times more dangerous than powder cocaine, lawmakers in 1986 enacted a notorious 100-to-1 sentencing scheme that levied the same prison sentence for possessing 5 grams of crack as it did for 500 grams of powder.

A 2010 law, the Fair Sentencing Act, restored some sanity to federal sentencing laws by narrowing considerably the disparities in sentencing between crack and powder. Unfortunately, the law did not spell out whether the new standards applied retroactively to people who were sentenced before it was enacted.

This month, however, a federal appeals court in Cincinnati ruled correctly that those sentenced for crack cocaine violations before the 2010 law was enacted can be resentenced under the new law. The cleanest and best solution would be for Congress to amend the Fair Sentencing Act to make it fully retroactive.

Until then, the ruling by the appeals court opens the door for thousands of inmates to ask federal judges to shorten their prison sentences. It expands a U.S. Supreme Court ruling last year that applied the Fair Sentencing Act to people who committed crack cocaine crimes shortly before more lenient penalties took effect in 2010.

It's time to undo fully these unjust and irrational sentences, which treated powder cocaine users -- who were typically white and often affluent -- far more leniently than the mostly black and poor users of crack cocaine.

Related posts on Blewett:

June 25, 2013 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (21) | TrackBack

Monday, June 24, 2013

NY Times editorial page gets on-board with Justice Safety Valve Act

Today's New York Times this new editorial headlined "Needed: A New Safety Valve." The piece draws on the encouraging bipartisan work in the House of Representatives concerning problems with the modern federal criminal justice systems and echoes some points stressed in a Wall Street Journal op-ed I co-wrote last month (noted here). Here are excerpts from the editorial:

Congress’s new bipartisan task force on overcriminalization in the justice system held its first hearing earlier this month. It was a timely meeting: national crime rates are at historic lows, yet the federal prison system is operating at close to 40 percent over capacity.

Representative Karen Bass, a California Democrat, asked a panel of experts about the problem of mandatory minimum sentences, which contribute to prison overcrowding and rising costs. In the 16-year period through fiscal 2011, the annual number of federal inmates increased from 37,091 to 76,216, with mandatory minimum sentences a driving factor. Almost half of them are in for drugs.

The problem starts with federal drug laws that focus heavily on the type and quantity of drugs involved in a crime rather than the role the defendant played. Federal prosecutors then seek mandatory sentences against defendants who are not leaders and managers of drug enterprises. The result is that 93 percent of those convicted of drug trafficking are low-level offenders.

Both the Senate and the House are considering a bipartisan bill to allow federal judges more flexibility in sentencing in the 195 federal crimes that carry mandatory minimums. The bill, called the Justice Safety Valve Act, deserves committee hearings and passage soon....

The proposed bill would apply to all federal crimes with mandatory minimums, not just drug crimes, so it would include theft of food stamps and miscellaneous other lesser crimes. It would also let judges consider less-lengthy sentences for drug offenders who don’t qualify for a reduction under the current law.

The case of Weldon Angelos has long stood for the injustice of mandatory minimums. Mr. Angelos received a 55-year prison sentence in 2004 for selling a few pounds of marijuana while having handguns in his possession, which he did not use or display. In an extraordinary opinion, the federal trial judge said he had no choice but to impose that “cruel, unjust, and irrational” sentence. The Justice Safety Valve Act would give courts more leeway to avoid that one-size-fits-all approach.

Some recent and older related posts:

June 24, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Monday, June 17, 2013

First-cut reactions as to what is big, and not so big, about Alleyne's reversal of Harris

I will likely have a lot to say about the specifics of the Sixth Amendment discussions in all the Alleyne opinions later today once I get more time to review the decision more closely.  But I have three quick reactions about the ruling and its potential impact I wanted to share right away.  I will give this trio of reactions these labels: big, not-so-big, could-be-huge.

The Big of Alleyne: though serious talk of a "Booker" fix to the advisory guidelines sentencing system has not had much juice for a very long time, the Alleyne ruling serves as a final nail in the "mandatory topless guidelines" idea that made the rounds as a potential legislative response to Blakely and Booker in the federal system.  That "fix," which would have required judges to do fact-finding to raise guideline minimums without impacting maximums, depended on the validity and vitality of Harris.  And Harris is now a goner.

The No-So-Big of Alleyne: though persons imprisoned now based on mandatory minimums triggered by judicial fact-finding might hope Alleyne is a new jurisprudential key to freedom, a host of doctrices may ensure very few new imprisoned persons get much benefit from Alleyne.  For starters, the retroactivity doctrines of Teague and AEDPA may make it hard for those long ago sentenced to get their Alleyne claims even heard in court.  Moreover, the harmeless error doctrines of Cotton and Recuenco may make it easy now for judges to say, even in those cases in which the issue can still be raised, that any Sixth Amendment error was harmless.

The Could-Be-Huge of Alleyne: there are any number of shaky exceptions and carve-outs to the full application of Apprendi doctrines, ranging from the prior-conviction exception of Almendarez-Torres to all sorts of efforts by lower courts to refuse to acknowledge Apprendi's potential impact on all sorts of judicial fact-finding that impacts punishment realities.  If Alleyne (which comes just a year after Southern Union) portends a Court now willing and eager to keep taking up Apprendi issues and extending the reach of the Sixth Amendment, we all might be in for quite an interesting Sixth Amendment ride over the next few Term.  (And, for the really creative, perhaps Alleyne could be combined with Peugh to perhaps even generate procedural protections even for federal defendants sentencing in a post-Booker world.)

Prior related post on Alleyne ruling:

June 17, 2013 in Almendarez-Torres and the prior conviction exception, Apprendi / Blakely Retroactivity , Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack

Per Justice Thomas in 5-4 SCOTUS split, Alleyne extends Sixth Amendment to findings triggering mandatory minimums

Big news from SCOTUS today for sentencing fans, with this (abridged) initial report coming from the fine folks live-blogging at SCOTUSblog:

Alleyene: Any fact that increases the mandatory minimum is an "element" that must be submitted to the jury. 5-4 opinion per Justice Thomas.

Majority is Thomas, Ginsburg, Breyer, Sotomayor, and Kagan. Dissent by Roberts, joined by Scalia and Kennedy. Alito dissents separately.... Justice Sotomayor also filed a concurring opinion....

This is a major criminal law ruling on the right to a jury trial. The Court reverses an earlier contrary ruling....

Here is the opinion in Alleyne.

And here is the money quote from the majority opinion: "Because there is no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum, Harris was inconsistent with Apprendi. It is, accordingly, overruled." Alleyne, slip op at 15.

Based on a much-too-quick first read, this Alleyne ruling seems to be everything (and not much more) than what should have been expected and predicted when the Court granted cert to reconsider Harris.  With all new Justices filling in the roles and votes of their predecessors, Harris gets reversed now because (and only because) Justice Breyer is no longer willing to prop up the ruling.  And, as he continues to play Hamlet with Sixth Amendment doctrine, Justice Breyer also continues to dump on the whole Apprendi line of case.

As I predicted in this post last November (and especially with speculations precedents inother areas perhaps being in jeopardy), the most interesting and enduring significance of Alleyne is the sparring between Justices Sotomayor and Alito over stare decisis.  I suspect after the con law folks get over their disappointment that we did not get any huge SCOTUS rulings today, there will be some enduring buzz over what all the Justices had to say (and not say) about stare decisis in Alleyne.

June 17, 2013 in Blakely in the Supreme Court, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11) | TrackBack

Thursday, June 06, 2013

George Will joins chorus calling for federal mandatory minimum sentencing reform

I am pleased to see this new op-ed by George Will in the Washington Post, which is headlined "Leahy and Paul plan on mandatory sentencing makes sense," urging federal sentencing reform with points that go beyond those I made in my co-authored Wall Street Journal commentary last month urging President Obama to get behind the Justice Safety Valve Act of 2013. Here are excerpts from Will's column:

Seven-term Democrat Pat Leahy’s 38 Senate years have made him Judiciary Committee chairman. Republican Rand Paul is in his third Senate year.  They hope to reduce the cruelty, irrationality and cost of the current regime of mandatory minimum sentences for federal crimes.

Such crimes are multiplying at a rate of more than 500 a decade, even though the Constitution explicitly authorizes Congress to criminalize only a few activities that are national in nature (e.g., counterfeiting, treason, crimes on the high seas).  The federal government, having failed at core functions, such as fairly administering a rational revenue system, acts like a sheriff with attention-deficit disorder, haphazardly criminalizing this and that behavior in order to express righteous alarm about various wrongs that excite attention.

Approximately 80,000 people are sentenced in federal courts each year.  There are an estimated 4,500 federal criminal statutes and tens of thousands of regulations backed by criminal penalties, including incarceration.  There can be felony penalties for violating arcane regulations that do not give clear notice of behavior that is prescribed or proscribed.  This violates the mens rea requirement — people deserve criminal punishment only if they intentionally engage in conduct that is inherently wrong or that they know to be illegal.  No wonder that the federal prison population — currently approximately 219,000, about half serving drug sentences — has expanded 51 percent since 2000 and federal prisons are at 138 percent of their supposed capacity.

The Leahy-Paul measure would expand to all federal crimes the discretion federal judges have in many drug cases to impose sentences less than the mandatory minimums.  This would, as Leahy says, allow judges — most of whom oppose mandatory minimums — to judge.  Paul says mandatory minimum sentences, in the context of the proliferation of federal crimes, undermine federalism, the separation of powers and “the bedrock principle that people should be treated as individuals.”...

The House Judiciary Committee has created an Over-Criminalization Task Force. Its members should read “Three Felonies a Day: How the Feds Target the Innocent,” by Harvey Silverglate, a libertarian lawyer whose book argues that prosecutors could indict most of us for three felonies a day.  And the task force should read the short essay “Ham Sandwich Nation: Due Process When Everything Is a Crime” by Glenn Harlan Reynolds, a professor of law at the University of Tennessee. Given the axiom that a competent prosecutor can persuade a grand jury to indict a ham sandwich, and given the reality of prosecutorial abuse — particularly, compelling plea bargains by overcharging with “kitchen sink” indictments — Reynolds believes “the decision to charge a person criminally should itself undergo some degree of due process scrutiny.”...

U.S. prosecutors win more than 90 percent of their cases, 97 percent of those without complete trials. British and Canadian prosecutors win significantly less, and for many offenses, the sentences in those nations are less severe.

Making mandatory minimums less severe would lessen the power of prosecutors to pressure defendants by overcharging them in order to expose them to draconian penalties. The Leahy-Paul measure is a way to begin reforming a criminal justice system in which justice is a diminishing component.

Some recent and older related posts:

June 6, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (15) | TrackBack

Sunday, June 02, 2013

Another notable GOP member of Congress advocating for federal sentencing reform

ChafAs regular readers know, I have been excited and heartened to see a number of notable Republican leaders speak out in favor of state sentencing reforms in the last few years.  Significant sentencing reform efforts at the state level have gotten a real boost from GOP governors like Chris Christie, Nathan Deal, Bobby Jindal and John Kasich.  Other high-profile folks on that side of the aisle ranging from Newt Gingrich to Ed Meese to David Keene to Grover Norquist have also been vocal in support of cost-saving sentencing reform efforts.  But this right-side movement has not gotten much attention or traction at the federal level, save for the recent work of Sentator Rand Paul advocating for reform of mandatory minimum sentencing provisions.

Consequently, it is now great to see that another notable GOP elected official is starting to talk up the need and opportunity for effective sentencing reforms at the federal level.  Specifically, as detailed in this lengthy new article in The Salt Lake Tribune, GOP representative Jason Chffetz is now among the Republican stalwarts urging federal sentencing reform. The article is headlined " Chaffetz unveils prison program to reduce recidivism and lower crime: Plan would put low-risk inmates in halfway houses, increase use of ankle bracelets," and here are excerpts:

Hoping to shrink the glut of low-risk federal inmates consuming tax dollars in prison, Rep. Jason Chaffetz is about to unveil a post-sentencing reform bill that would allow drug offenders and others to earn early release into halfway houses, home confinement and ankle-bracelet monitoring.

Quietly, the Utah Republican has worked Washington’s back channels for 18 months to forge bipartisan support. He insists the program — vetted by the Heritage Foundation and the ACLU — would reduce recidivism, lower crime rates and rein in spending on the federal prison system.

“There’s some really good work being done by states that we ought to learn from,” Chaffetz told The Salt Lake Tribune editorial board this week. “It’s a financial imperative, it’s a moral imperative — it just makes a lot of sense.”

The challenge, Chaffetz concedes, is assuring the political right the measure isn’t soft on crime, while convincing the left it goes far enough — short of unwinding mandatory minimum sentences. “The risk, if there is with this, is the over-simplification,” the congressman said, bemoaning bumper-sticker politics. “It does take some explanation. It does take an adult conversation to say, ‘folks, we can do this.’ ”

The proposal marks a pivot for Chaffetz, whose more partisan turns with conservative media include talk of impeaching President Barack Obama regarding recent investigations, including the embassy attack in Benghazi, Libya....

The program would work by dividing federal prisoners into high, moderate or low risks of recidivism. They would be judged by level of engagement in existing programs, holding prison jobs and participation in faith-based services and educational courses.

Low-risk inmates would earn 30 days credit per month, moderate would notch 15 days, while high-risk convicts could get eight days worth of credit. Only low-risk prisoners would be eligible for pre-release custody into a halfway house, home confinement or ankle-bracelet program. Prisoners convicted of violent felonies, terrorism, rape or a sex offense against a minor would not be considered. Neither would undocumented immigrants, an “albatross” and too touchy a topic, Chaffetz says.

The measure neither reduces minimum sentence time nor impacts Truth in Sentencing requirements. That’s because 85 percent of each federal sentence still would be completed as mandated — though some of it could be outside the prison walls....

Brett Tolman, a former U.S. attorney, remembers how inflexible the federal system seemed when a young man “who had a bad weekend” with drugs was slapped with a 35-year minimum sentence.

Then there is Utah music producer Weldon Angelos, who had no prior criminal record and now is considered a casualty of the war on drugs. Convicted in 2003 while he was in his early 20s of selling small amounts of marijuana — a witness claimed he had a gun on his side — Angelos was sentenced to 55 years under federal minimums. Cassell, the judge in the case hamstrung by the law, urged President George W. Bush to commute the sentence, calling it “unjust, cruel and irrational.”...

“We’ve got to fix the front end,” said Mary Price, vice president of the nonprofit Families Against Mandatory Minimums, which is still reviewing the Chaffetz bill. “We’re still pouring thousands of people into prison every year for sentences that are frankly too long.”

Karen McCreary, executive director of ACLU of Utah, says she too would like to see reform to mandatory minimums but is intrigued by Chaffetz’ bill. “The drug wars have made our system so full, so this is a positive,” McCreary said. “It seems like a good step in the right direction.”...

The Chaffetz proposal is modeled partly on Texas, which became the first state to complete a so-called “justice reinvestment” process, saving the state $1.5 billion in construction costs and $340 million in averted operating costs.

Tolman told the editorial board it’s time the feds learned effective prison models from states like Texas. “We’ve always been arrogant and felt that we can do things better,” Tolman said. “Either we’re so large and cumbersome that we can’t, or we’re so ignorant and stubborn that we won’t.”

Some recent and older related posts:

June 2, 2013 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack

Saturday, June 01, 2013

"Amoral Numbers and Narcotics Sentencing"

The title of this post is the headline of this notable new article authored by Mark Osler and now available via SSRN. Here is the abstract:

Americans are fascinated with lists and rankings. Magazines catch the eye with covers promising “92 Cute Summer Looks,” college football fans anxiously await the release of pre-season rankings, and law schools have reshaped themselves in reaction to the rankings released by U.S. News and World Report.  With each of these, though, the lists often do more to create a reality than to reflect one, with distinct negative effects. The same problem plagues federal narcotics sentencing, where rankings of the relative seriousness of crimes are embedded in sentencing guidelines and minimum sentences required by statutes, though they are rooted neither in empirical evidence nor a consistent theory of problem-solving.

June 1, 2013 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1) | TrackBack

Friday, May 24, 2013

"Prison-Sentence Reform: A bill to give judges flexibility to impose shorter sentences deserves conservatives’ support."

The title of this post is the headline of this notable new National Review commentary by David Keene, a former president of the National Rifle Association and the American Conservative Union, explaining why conservatives should support the Justice Safety Valve Act.  Here are extended excerpts:

Like many conservatives, I supported many [mandatory minimum sentencing] laws when they were enacted and still believe that, in some narrow situations, mandatory minimums makes sense. But like other “one-size-fits-all” solutions to complicated problems, they should be reviewed in light of how they work in practice.

Fortunately, Senators Rand Paul (R., Ky.) and Patrick Leahy (D., Vt.) have crafted a smart and modest reform bill that will fine-tune these laws to eliminate many of the unforeseen and, frankly, unfair consequences of their application when the facts demand more flexibility. This bipartisan measure deserves conservative support.

The bill, the Justice Safety Valve Act of 2013, maintains existing federal mandatory-sentencing laws. It enables judges to depart from the minimums in certain cases, however, such as when the mandatory sentence is not necessary to protect public safety and seems blatantly unfair in light of the circumstances of the offense. In so doing, their proposal fulfills the primary objective of criminal-justice policy: protecting public safety, while promoting our constitutional separation of powers and saving taxpayers the expense of unnecessary and counterproductive incarceration.

Many people, conservatives as well as liberals, have come to believe that most mandatory-minimum-sentencing laws should be repealed. These laws give prosecutors nearly unchecked power to determine sentences, even though courts are in a better position to weigh important and relevant facts, such as an offender’s culpability and likelihood of reoffending.

Federal mandatory-minimum-sentencing laws are especially problematic. Not only do they transfer power from independent courts to a political executive, they also perpetuate the harmful trend of federalizing criminal activity that can be better prosecuted at the state level.

For years, conservatives have wisely argued that the only government programs, rules, and regulations we should abide are those that can withstand cost-benefit analysis. Mandatory minimum sentences, by definition, fail this basic test because they apply a one-size-fits-all sentence to low-level offenders, even though the punishments were designed for more serious criminals.

Economists who once wholeheartedly supported simple pro-prison policies now believe they have reached the point of diminishing returns. One is University of Chicago economist Steven D. Levitt, best known for the best-selling Freakonomics, which he co-authored with Stephen J. Dubner. Levitt recently told the New York Times, “In the mid-1990s I concluded that the social benefits approximately equaled the costs of incarceration,” and, today, “I think we should be shrinking the prison population by at least one-third.”

In other words, the initial crackdown was a good thing, but we are now suffering the effects of too much of that good thing. If Levitt’s estimate is even close, right now we are wasting tens of billions of dollars locking people up without affecting the crime rate or enhancing public safety. In fact, spending too much on prisons skews state and federal budgetary priorities, taking funds away from things that are proven to drive crime even lower, such as increasing police presence in high-violence areas and providing drug-treatment services to addicts.

The Paul-Leahy bill will help restore needed balance to our anti-crime efforts. Repeat and violent criminals will continue to receive and serve lengthy prison sentences, but in cases involving lower-level offenders, judges will be given the flexibility to impose a shorter sentence when warranted.

The Paul-Leahy bill is a modest fix that will affect only 2 percent of all federal offenders, and even they won’t be spared going to prison. They will simply receive slightly shorter sentences that are more in line with their actual offenses. The bill will improve public safety, save taxpayers billions of dollars, and restore our constitutional separation of powers at the federal level while strengthening federalism. This is a reform conservatives should embrace.

Some recent and older related posts:

May 24, 2013 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

Sunday, May 19, 2013

How quickly can and will (hundreds of) imprisoned crack defendants file "Blewett claims"?

As first discussed in this post and further here, a split panel of the Sixth Circuit on Friday handed down a significant (and questionable) ruling in US v. Blewett declaring that the reduced mandatory minimum crack sentences set out in the Fair Sentencing Act of 2010 must be applied even to those offenders sentenced before the Act’s effective date.  This ruling could means still-imprisoned crack defendants sentenced in the two decades before the FSA could now seek a reduction in their mandatory minimum sentences under the FSA's new terms, at least if they were originally sentenced in the Sixth Circuit.

Though this ruling seems very likely to be appealed by the Justice Department, right now it is the law of the (Sixth Circuit) land. Notable, the folks at FAMM have already created this webpage with a basic explanation about what Blewett means and does not mean.  Here is part of what it says:

Blewett can only help federal (not state) prisoners who (1) were convicted in a federal court in Michigan, Kentucky, Ohio, or Tennessee, AND (2) received a mandatory minimum sentence for a crack cocaine offense, AND (3) were sentenced before August 3, 2010.  The case cannot help people convicted in state courts or federal prisoners whose cases did not involve crack cocaine....

We expect that the government will ask the entire Sixth Circuit Court of Appeals to review this opinion.  If it does, and the full appeals court agrees to the review, we expect the Blewett decision to be stayed until the full court hears it.  This means that courts will not be allowed to resentence anyone using the Blewett opinion unless and until it is affirmed. We do not know how long the appeal will take, how soon it will happen, or what the outcome will be.  This opinion could be reversed, in which case it would not help anyone....

If you or a loved one are a federal prisoner serving a pre-FSA crack cocaine mandatory minimum sentence, and you were sentenced in federal court before August 3, 2010, in Michigan, Kentucky, Ohio, or Tennessee, call your attorney and ask them if Blewett could help you.  FAMM cannot tell you if you might benefit if the Blewett decision stands, and we cannot give you legal help or advice. You and your loved ones should talk to your attorneys.

A little bit of very rough data analysis from a variety of US Sentencing Commission publications indicates that there may still be as many as 20,000 federal prisoners currently in BOP custody serving pre-FSA mandatory minimum crack sentences, and that the Sixth Circuit has historically been responsible for about 10% of nationwide crack sentences.  That means that perhaps two thousand or more imprisoned federal defendants might reasonably file what I will can a "Blewett claim" in the district courts of the Sixth Circuit. 

Even if my data estimates are off somewhat, there are certainly many hundreds now imprisoned federal defendants, persons who were sentenced to mandatory minimum crack terms in the Sixth Circuit before August 2010, who could (and I think should) file claims ASAP that they are now entitled to resentencing under the terms of the FSA due to the Blewett ruling. I suspect that not all that many defendants or lawyers were busy drafting Blewett claims this weekend, but I also suspect that time may be of the essence for defendants eager to take advantage of this ruling while it is still good law.

Related posts on Blewett:

May 19, 2013 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17) | TrackBack

Saturday, May 18, 2013

"Crackheaded Ruling by Sixth Circuit"

The title of this post is the headline of this new commentary by Ed Whelan at the National Review Online concerning yesterday's suprising split panel ruling by the Sixth Circuit in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (opinion here; my commentary here).  Here are excerpts from Whelan's take:

[I]n an opinion that will likely surprise all nine justices, a divided panel of the Sixth Circuit ruled (in United States v. Blewett) that the more lenient sentences of the Fair Sentencing Act apply to all crack-cocaine offenders, including those who were sentenced before the Act’s effective date. The justices will be much less surprised to discover that the opinion was authored by Gilbert S. Merritt Jr. and joined by Boyce F. Martin Jr., two Carter appointees who have plagued the Sixth Circuit for more than three decades. It’s notable that the thorough dissent comes not from a Republican appointee but from Clinton appointee Ronald Lee Gilman....

Under [the panel majority's] illogic, once it becomes known that a law has a (constitutionally permissible) racially disparate impact, the maintenance of that law would suddenly be transformed into intentional discrimination. As Judge Gilman observes, there is no support for such a proposition.

As Judge Gilman spells out, there is much more that is wrong with the majority opinion, from the fact that it rules on an “unbriefed and unargued issue” to its multiple violations of circuit precedent. Let’s see if the en banc Sixth Circuit will repair the damage or will instead leave it to the Supreme Court to do so.

Unsurprisingly, folks at the ACLU and FAMM have a much different perspective on the Sixth Circuit panel majority's work in Blewett.  Here are the titles and links to the press releases coming from these groups:

For legal, policy and practical reasons, it should be very intriguing to watch closely just where, when and how the Justice Department and others are going to argue that the majority in Blewett really blew it.

Related post:

May 18, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack

Friday, May 17, 2013

"Two Rights to Counsel"

The title of this post is the title of this notable new article by Josh Bowers now available via SSRN. Here is the abstract:

This forthcoming essay argues that there is not one constitutionally recognized right to counsel, but two. There is a right to legal counsel and a right to extralegal counsel.  The right to legal counsel applies principally to the formal domain of the criminal trial; the right to extralegal counsel applies exclusively to the informal domains of the plea bargain and guilty plea. 

To understand the distinction, consider the Court’s recent decisions in Lafler v. Cooper and Missouri v. Frye.  An underappreciated feature of these rulings is the manner by which the Court has encouraged (and perhaps even constitutionally required) counsel to bargain “creatively” around substantive law.  Specifically, the Court has signaled that prosecutors and defense attorneys — not legislators — are the system’s real policy makers, and that, accordingly, effective assistance of counsel ought to be measured against their conception of the “sound administration of criminal justice.”  In the process, the Court has almost re-conceptualized the right to counsel as a constitutional entitlement to skirt legislative command — an entitlement that Justice Scalia derisively has termed a threat to the legality principle.

It does not follow, however, that the Court’s two-track jurisprudential approach is misguided.  Whereas the approach continues a troubling trend away from legislative and lay influence over criminal justice and toward professional executive control, it also may constitute the pragmatic (and even normatively compelled) best course in a second-best system of criminal justice that depends procedurally on horse trading and substantively on mandatory sentencing statutes that ill serve any defensible conception of proportionality or crime control.

May 17, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, May 15, 2013

Judge Kopf weighs in on Rep. Sensenbrenner (and on comments to his comment)

I am pleased to see that Senior United States District Judge Richard Kopf has now discussed, through two recent posts on his blog "Hercules and The Umpire", some of the recent discussion generated by my post concerning Representative James Sensenbrenner's statement about "judge-shopping" and the need for mandatory minimum sentencing laws.  Here are the titles of the two posts by Judge Kopf, along with the heart of Judge Kopf's additional commentary in these posts:

Memo to Doug Berman: The answer is “yes.” (This is a direct answer to this post's title query: "Isn't it stunningly idiotic for GOP Rep. Sensenbrenner to defend mandatory minimums because of "judge-shopping'?"):

I once had an audience with then Chairman Sensenbrenner in his Washington office. It was disconcerting for a variety of reasons.  Prime among the reasons for my disquiet was the fact that the Congressman sat very near to a portrait of himself that was so large and so lifelike that I could not figure out whether I was speaking to the portrait or the real guy. As it turned out, nothing I said to the portrait or the man made any difference.

More on Sensenbrenner:

Everyone who knows anything about the federal district courts understand that it is virtually impossible to judge-shop in the manner suggested by the Bucky Badger doppelgänger.  Everyone who knows anything about federal sentencing policy -- from the Sentencing Commission on down -- also knows that almost all mandatory minimum sentences radically distort and frustrate reasoned sentencing practices.  The current effort to address statutory minimums in Congress is really important and Doug’s effort to stimulate serious discussion on the subject was cheapened by the responses he received.

Good and smart people ought to act good and smart.  We have the Sensenbrenners of the world to provide us with the nasty and dumb.

May 15, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Tuesday, May 14, 2013

Isn't it stunningly idiotic for GOP Rep. Sensenbrenner to defend mandatory minimums because of "judge-shopping"?

SensenbrennerThis recent new article in CQ Weekly was especially notable, as I noted in this post, because it highlighted how many Republican members of Congress are now leading serious discussions of review and possible reform of the federal criminal justice system and severe federal sentencing laws.  But I needed to do this separate post to spotlight what seems to be a stunningly stupid comment from Wisconsin Republican Jim Sensenbrenner in his explanation for why he still supports federal mandatory minimum sentencing laws. Here is the passage from the CQ Weekly article that almost made my head explode:

While the dialogue may be changing, passing legislation, as always, is another story.  Even the idea of studying the criminal justice system proved too controversial in the Senate in 2011, when a national commission proposed by former Democratic Sen. Jim Webb of Virginia fell to partisan fighting.

The House task force might agree to weed out relatively minor crimes such as possession of a migratory bird — the kind of regulations Republicans tend to view as government overreach — but it may be less inclined to rethink the mandatory minimum sentences that many Democrats abhor.

Sensenbrenner said as much in an interview, arguing that without such sentences, prosecutors and defense attorneys would “shop” for judges based on their reputations for handing out tough or lenient penalties.  “If there isn’t a better way to stop judge-shopping, then I think we’re stuck with mandatory minimums,” he says.

Perhaps Sensenbrenner knows something magical about the operation of the federal criminal justice system that I do not know, but I am pretty sure there are no existing mechanisms for either prosecutors or defense attorneys to somehow "shop" for judges based on their sentencing reputations.  If there were, I am confident federal prosecutors would do their very darnedest to make sure they never had any sentencing cases before district judges like Jack Weinstein (who has a well-deserved reputation for abhorring any sentencing rules demanding long setences) and defense attorneys would do their very darnedest to make sure they never had any sentencing cases before district judges like Linda Reade (who has a well-deserved reputation for being eager to give long within-guideline sentences).

As regular readers should know, I think there are a few valid — but ultimately unconvincing — arguments to be made in support of some existing federal mandatory minimum sentencing laws.  And I heartily welcome supporters of existing federal mandatory minimum laws to make their very best arguments in support of the status quo, especially as Rand Paul and other notable new congressional voices urge statutory reforms.  But gosh, is it too much to ask that powerful members of Congress at least have the most basic understanding of how our existing sentencing laws and procedures actually work before they assert that we have to be "stuck with mandatory minimums"?

In my perfect sentencing law and policy world, a comment this idoitic from someone who has long played a central role in passage and reform of federal sentencing laws would be grounds for impeachment.  But, as my work on this blog so often highlights, we are very far — and, I fear, will always be very far — from my perfect sentencing law and policy world.

Some recent and older related posts:

May 14, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (37) | TrackBack

Sunday, May 12, 2013

"Sentencing Bill Could Cost Taxpayers $760 Million Over 10 Years"

The title of this post is the headline of this recent report concerning the projected price tag for a sentencing proposal being discussed as an approach to dealing with Chicago's gun violence.  Here are the details:

A bill designed to reduce gun violence by increasing gun-crime sentences could end up costing Illinois taxpayers hundreds of millions of dollars, according to an investigation by NBC Chicago and The Chicago Reporter.

State Representative Mike Zalewski (D-Riverside) has proposed a bill to increase Illinois’ minimum mandatory prison sentence for gun violators from one year to three years. "We have to make sure individuals are afraid, frankly, of the law, and afraid of the consequences," Zalewski said. "I think three years sets a high bar that if you’re found guilty of the offense, you’re going to face serious consequences. You’re not going to be right back out on the street."

But critics say the bill is nothing more than "political theatre." What’s more, it’s prohibitively expensive, according to opponents like John Maki, Executive Director of the John Howard Association, a local prison-watchdog group. "It’s going to add about 4,000 inmates in about three years," Make explained. "It’s going to explode the budget."

The results of a study done by NBC Chicagos partner, The Chicago Reporter, would seem to support that view. The Reporter analyzed all criminal cases in Cook County Criminal Court from 2000 through 2011, and estimated that it cost taxpayers more than $5.3 billion to imprison Chicago criminals during that period. If those sentencing costs were extrapolated to include the increased prison time resulting from Zalewski’s gun-sentencing bill, The Reporter estimates the bill to taxpayers would have increased by an additional $760 million during that same time period....

As for the potential added expense of these expanded prison sentences, Zalewski is part of a separate discussion in Springfield, aimed at freeing up space in Illinois’ overcrowded prisons. The discussion centers around reducing the number of non-violent offenders — people convicted of such offenses as prostitution or drugs, for example — to make room for these more violent gun offenders.

Discussing this idea and similar gun sentencing proposals making the rounds in other states, Daniel Denvir has this recent commentary in The New Republic.  Its headline captures its themes: "The Worst Gun Control Idea Has Bipartisan Support: Why states should not pass new mandatory minimums for firearm possession."

May 12, 2013 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Wednesday, May 08, 2013

"Federal Public Defense in an Age of Inquisition"

The title of this post is the title of this notable new article by federal public defender David Patton, which is now available via SSRN.  Here is the abstract:

This Essay asks whether federal criminal defendants receive fairer process today than they did in 1963, when Gideon v. Wainwright was decided.  It concludes that in many situations they do not; indeed, they often receive far worse.  Although Gideon and the Criminal Justice Act of 1964 undoubtedly improved the quality and availability of counsel in the federal courts, extraordinary damage has been done since then to the aspect of the criminal justice system that makes lawyers so valuable: the adversary process.

Sentencing severity, the control of that severity by prosecutors rather than judges or juries, and high rates of pretrial detention have greatly limited defendants’ ability to challenge the government’s version of the facts and the law.  This Essay briefly describes federal criminal practice as it existed in 1963 and illustrates the shifts that have occurred by discussing current practice in the federal public defender office in New York City.

May 8, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack