Thursday, January 17, 2013

Judiciary Committee Chair Leahy expresses interest in mandatory minumum sentencing reform

At the end of this lengthy post at The BLT, I discovered some interesting and encouraging sentencing reform news coming from a speech given yesterday by Senator Patrick Leahy.  Here is the start and end of the post:

Senate Judiciary Committee will dedicate most of its time this spring to comprehensive immigration reform, including changes for technology companies and agricultural businesses, Senator Patrick Leahy (D-Vt.), the committee's chairman, said Wednesday.

"We have to find a way through the partisan gridlock to enact meaningful change on immigration laws, and that should include a path for citizenship," Leahy said at Georgetown University Law Center this morning. "I know I’m going to hear a lot of different views on this, but I hope that in the end we can honor those who came before us from distant lands in search of freedom and opportunity."...

The committee will also focus on promoting national standards and oversight for forensic labs and practitioners, as well as fiscal issues related to the high rate of imprisonment and mandatory minimum sentences, Leahy said.

The reliance on mandatory minimum sentences has been "a great mistake," Leahy said. "Let judges act as judges and make up their own mind what should be done. The idea we protect society by one size fits all…it just does not work in the real world."

Leahy also said there are too many young people, minorities, and people from the inner cities, who are serving time where others who do the same crime get lighter penalties.  He used the example of someone from the inner city buying $100 of cocaine could spend years in prison, while a Wall Street banker would only face reprimand, and maybe spend a week of public service on Park Avenue.

January 17, 2013 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, January 15, 2013

Another perspective on Alleyne argument (predicting Harris's demise)

Experienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here), who has already provided a terrific review of last week's meeting of the US Sentencing Commission for the blog here, now comes through with this lengthy guest-post concerning what he saw at yesterday's SCOTUS oral argument over the reach of the Apprendi:

In a rather spirited exchange between the Justices and counsel, the U.S. Supreme Court heard oral argument today in Alleyne v. United States, 11-9335. (Alleyne is pronounced “AH-lane,” by the way).   The question presented was whether the Court should over-rule its decade old plurality decision in Harris v. United States, 536 U.S. 545 (2002), which held that Apprendi did not apply to facts triggering mandatory minimum penalties. In Alleyne, the defendant was convicted of violating 18 U.S.C. § 924(c), which requires a 5-year mandatory minimum sentence for possession of a firearm in connection with another felony, but a 7-year mandatory minimum if the firearm was brandished, 10 years if discharged.   Moreover, such mandatory minimum penalties are to be imposed consecutive to any guidelines sentence for the underlying felony.   A special verdict form was used in Alleyne as to whether the defendant merely possessed or brandished the firearm; the jury found only that a firearm was possessed.   However, at sentencing, the district judge found by a preponderance of the evidence that the defendant in fact brandished the firearm.  And while reluctant to be a “reverser” of the jury, imposed the 7-year mandatory minimum sentence.

Somewhat surprisingly, the Court started off with a rather rigorous investigation into stare decisis.   Justices Alito and Scalia explored what the principle was for ignoring stare decisis in this case, and pondered the effect of prior opinions of the Court on Harris. Justice Ginsburg helpfully asked whether the issue simply was the degree of persuasiveness a plurality decision has vis-à-vis a unanimous opinion.  Still Justice Alito struggled with developing a constitutional principle that would support overruling Harris. Nevertheless, it did not appear that stare decisis would be an impediment to reversing Harris.

Moving on to the core issue, the Justices struggled with what the holdings in Apprendi and McMillan (upon which Harris rested) meant in terms of increased penalty exposure.  If the ceiling (statutory maximum) is increased, all agreed that that clearly increases a defendant’s exposure. T he issue was whether that also applied to the floor (mandatory minimum).  Justice Scalia repeatedly returned to the fact that if only the floor changes, say from 5 years to 7 years, it does not change what a judge “could have” imposed, and therefore does not increase a defendant’s exposure.  So, for example, if the ranges are 5 to 10 years, a judge could just as easily impose a 7 year sentences the same as if the range were 7 to 10 years.  The government framed the issue as whether a defendant has a constitutional right to judicial leniency. i.e., to a lower sentence than the mandatory minimum.

Interestingly, while there was a focus on the statutory maximum, there was little discussion of a penalty “range,” which to this observer would have seemed to address much of the concern.  A range, of course, implies both a ceiling and a floor.  Apprendi did, after all, discuss exposure not only in terms of an increased statutory maximum penalty, but expressly held that “[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed RANGE of penalties to which a criminal defendant is exposed.” (Emphasis added).  And as we all know, Booker, in holding the Federal Sentencing Guidelines unconstitutional, was concerned about “ranges” there as well.  So, if the argument had moved away from just the ceiling and to “range,” then it would have seemed to address some of the Court’s concerns.  Interestingly, Justice Breyer, who candidly admitted in Harris that he could not logically distinguish Apprendi from its application to mandatory minimum penalties, was silent throughout much of the debate.

Finally, there was some interesting discussions concerning statistics from Justices Kagan and Sotomayor.  Those Justices inquired as to the frequency of sentences imposed at the mandatory minimum in 924(c) cases.  Presumably if judges impose sentences at the mandatory minimum the majority of the time (and Petitioner’s counsel indicated that this is the case), such a finding presumably would tend to show that judges likely would impose a lower sentence if they could (and indeed, per the record below, that appeared to be the case in Alleyne).   However, the question was not framed quite right.  The penalties at 924(c) are imposed consecutive to any guideline sentence, so unless one knew what the underlying guideline sentence was, merely looking at the final sentence would not be instructive.  Further, and more importantly, the Commission does not provide any statistics on 924(c) that would be helpful to answering this question (although Ch. 9 of its recent report to Congress on Mandatory Minimum Penalties does provide some insight). Providing such statistics would be quite helpful, and the Commission’s database appears robust enough to provide reports on the same.

In the end, it appears to this observer that Harris will be overruled. Given that Harris will have little practical effect on sentencing practice because the government already includes in the indictment the facts that trigger a mandatory minimum, it is somewhat odd (to this observer) why the Court granted cert. in Alleyne.  Was it simply an academic exercise to clean-up Harris?  Perhaps, although it could be the start of a larger effort.  The Court recently asked the government to file a response to a petition of cert. in Stroud v. United States, 12-6877 addressing the controversial holding in Watts that courts may use acquitted and uncharged conduct at sentencing.

Recent prior posts on Alleyne case:

January 15, 2013 in Blakely in the Supreme Court, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

Monday, January 14, 2013

An early report on Alleyne argument over Apprendi's reach

As previewed here, today was a big day for the Sixth Amendment before the Supreme Court.  Hard-core sentencing fans have to be interested in the Alleyne case concerning the right to a jury determination of facts that trigger the application of mandatory minimum sentencing terms.  Lyle Denniston has this SCOTUSblog recap of today's argument in Alleyne, which gets started this way:

After taking an obligatory look at whether the Supreme Court should feel bound by its past precedents, the Justices on Monday moved into an issue clearly of more interest to them: what do they need to do to protect the role of juries in laying the groundwork for criminal sentences? This inquiry turned into a combative discussion of just what the Court meant in 2000 in giving jurors a much-enhanced role when their verdicts trigger the fixing of sentences — the historic decision in Apprendi v. New Jersey.

The Justices who were opposed to expanding Apprendi argued that it dealt singularly with curbing judges who decide to impose a sentence beyond the top limit set by the legislature, while the Justices who seemed ready to push Apprendi a bit further contended that it should mean that increasing a convicted individual’s potential sentence should depend upon what the jury found, not the judge.  There did not seem to be a middle ground.  The two lawyers arguing the case were just as far apart.

As long-time readers should know, I keep trying to push a distinction between offense facts and offender facts as kind of a middle-ground position on Apprendi's reach, and that idea finds expression in an amicus brief I helped put together in Alleyne (discussed here).  Sadly, based on this early account of today's argument in Alleyne, it would appear that yet another group of inside-the-beltway folks are more interested in sticking to their polarizing positions than in coming up with middle-ground solutions to important problems.

I suspect I will have more to say about Alleyne after I get a chance to read the oral argument transcript, which is now available at this link.

Recent prior posts on Alleyne case:

January 14, 2013 in Blakely in the Supreme Court, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Friday, January 11, 2013

Great weekend reading for Sixth Amendment fans

My main plans for the coming weekend is to watch a lot of (well-paid) large men running around a small field inflicting brain damage on one another while millions cheer them on while drinking lots of alcohol (aka the NFL divisional playoffs).  But I may also have to spend a little time obsessing over the Sixth Amendment and its application to mandatory minimum sentencing fact-finding because Monday brings the Supreme Court oral argument in Alleyne v. United States (basics and briefing here via SCOTUSblog).

Moreover, as Rory Little spotlights in this new SCOTUSblog post, there is also another distinct type of Sixth Amendment case on tap for the Justices on Monday.  Here is how Rory's preview gets started:

Monday is apparently “Sixth Amendment Day” at the Court.  Most eyes will be on the first case to be argued (Alleyne v. United States), in which the Court will consider whether there an Apprendi right to jury trial for mandatory minimum sentencing facts.  But don’t ignore the second case, Boyer v. Louisiana, which presents a Speedy Trial question that seems increasingly important in a world of rising appointed-counsel costs funded by decreasing government budgets.

When a criminal trial is delayed because there are no funds to pay for the indigent defendant’s counsel, does that delay count against “the state” in a Speedy Trial analysis?  We’ll see whether the Justices can stay focused on this discrete question presented – which would be an important one to answer around the nation — or whether they will take the bait (offered by both sides albeit in opposite directions) to decide whether the right to speedy trial was actually violated on the (always) unique facts of this case?  The normal course would be to answer only the question presented, and then remand for “further proceedings not inconsistent” with the Court’s opinion.  While “bad facts” on both sides in this case might tug for a broader ruling, it seems more likely that the Justices will avoid a decision on the ultimate merits – which still leaves a difficult debate on the narrower question.

In addition to the parties' briefs in both cases, there are two amicus briefs filed in Boyer and six amicus briefs filed in Alleyne.  If the NFL playoff games fail to hold my attention, I likely will pull some of these briefs up on my e-reader; I would greatly appreciate any informed (or even uninformed) recommendations as to which of all these briefs make for the best reads. 

Of course, I am partial to the Alleyne brief I help put together for the New York Council of Defense Lawyers (discussed here), in part because it presents an approach to the Sixth Amendment that does not appear in other briefs.  I suspect that, especially in all the Alleyne case, a lot of similar ground may get covered in all the usual discussion of Sixth Amendment jurisprudence; I am thus especially interested to figure out whether and how any fresh ideas about the Apprendi line of cases have been presented to the Justices in all the briefing.

Recent prior posts on Alleyne case:

January 11, 2013 in Blakely in the Supreme Court, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Monday, January 07, 2013

California medical marijuana provider gets 10-year mandatory-minimum federal prison term

As reported in this local story, headlined "Medical marijuana: Aaron Sandusky sentenced to 10 years in federal prison," a high-profile case from federal court in California has resulted in a significant prison term today as a result of federal mandatory minimum sentencing laws.  Here are the basics:

Aaron Sandusky has been sentenced to 10 years in federal prison.  The former G3 Holistic Inc. medical marijuana dispensary president was sentenced today in U.S. District Court in Los Angeles for operating medical marijuana dispensaries in Upland, Colton and Moreno Valley.

"In this case, as the defendant was warned, the court's hands are tied," U.S. District Judge Percy Anderson said. "Whether you agree with the defendant's position or not."

Sandusky was found guilty in October of conspiracy to manufacture marijuana plants, to possess with intent to distribute marijuana plants, and to maintain a drug-involved premises; and one count of possession with intent to distribute marijuana plants, according to the U.S. Department of Justice.... 

"I want to apologize to those with me and their families who have been victimized by the federal government who has not recognized the voters of this state," Sandusky said in court.

State voters approved Proposition 215 in 1996, allowing medical marijuana in the state, while state Senate Bill 420, which details the amount of marijuana a person can possess for medical purposes, prevents cities and counties from banning marijuana dispensaries. But federal law says marijuana -- medical or otherwise -- is illegal. "I want to apologize to the families who are suffering and who have to go through this," Sandusky said.  "There are no winners here.  Not the state, not the federal government, not the patients who need medical marijuana."...

Sandusky turns 43 on Tuesday.  "It's not going to be a real happy birthday," G3 Holistic patient Christopher Kenner said.  "I hate to think this is the last time I'll see him."

Federal authorities in June arrested Sandusky and additional operators of the Inland Empire chain of marijuana stores and others associated with a warehouse, where marijuana was cultivated for the stores, on federal drug trafficking charges.  A six-count indictment returned by a federal grand jury charged three owners and operators of G3 Holistic stores. The indictment also charged three people who allegedly worked at a large grow operation in an Ontario warehouse that supplied marijuana to the three G3 stores.

I presume that Aaron Sandusky has preserved all of his potential appellate issues concerning his trial and sentencing and that he will pursue an appeal in the Ninth Circuit. Consequently, I doubt today's federal sentencing is the last chapter in his federal prosecution story.

January 7, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Pot Prohibition Issues, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, January 02, 2013

"Plead Guilty or Go to Prison for Life"

The title of this post is the headline of this new commentary concerning the Chris Williams' case and authored by Jacob Sollum over at Reason.com.  The sub-headline is "The stark choice given a medical marijuana grower highlights the injustice of mandatory minimums," and here are excerpts:

Chris Williams, a Montana medical marijuana grower, faces at least five years in federal prison when he is sentenced on February 1. The penalty seems unduly severe, especially because his business openly supplied marijuana to patients who were allowed to use it under state law.

Yet five years is a cakewalk compared to the sentence Williams originally faced, which would have kept the 38-year-old father behind bars for the rest of his life. The difference is due to an extremely unusual post-conviction agreement that highlights the enormous power prosecutors wield as a result of mandatory minimum sentences so grotesquely unjust that in this case even they had to admit it....

For a while it seemed that Williams, who rejected a plea deal because he did not think he had done anything wrong and because he wanted to challenge federal interference with Montana's medical marijuana law, also was destined to die in prison. Since marijuana is prohibited for all purposes under federal law, he was not allowed even to discuss the nature of his business in front of the jury, so his conviction on the four drug charges he faced, two of which carried five-year mandatory minimums, was more or less inevitable.

Stretching Williams' sentence from mindlessly harsh to mind-bogglingly draconian, each of those marijuana counts was tied to a charge of possessing a firearm during a drug trafficking offense, based on guns at the Helena grow operation that Williams supervised and at Flor's home in Miles City, which doubled as a dispensary. Federal law prescribes a five-year mandatory minimum for the first such offense and 25 years for each subsequent offense, with the sentences to run consecutively.

Consequently, when Williams was convicted on all eight counts, he faced a mandatory minimum sentence of 80 years for the gun charges alone, even though he never handled the firearms cited in his indictment, let alone hurt anyone with them. This result, which federal prosecutors easily could have avoided by bringing different charges, was so absurdly disproportionate that U.S. Attorney Michael Cotter offered Williams a deal.

Drop your appeal, Cotter said, and we'll drop enough charges so that you might serve "as little as 10 years." No dice, said Williams, still determined to challenge the Obama administration's assault on medical marijuana providers. But when Cotter came back with a better offer, involving a five-year mandatory minimum, Williams took it, having recognized the toll his legal struggle was taking on his 16-year-old son, a freshman at Montana State University.

"I think everyone in the federal system realizes that these mandatory minimum sentences are unjust," Williams tells me during a call from the Missoula County Detention Facility. But for prosecutors they serve an important function: "They were basically leveraging this really extreme sentence against something that was so light because they wanted to force me into taking a plea deal." Nine out of 10 federal criminal cases end in guilty pleas.

The efficient transformation of defendants into prisoners cannot be the standard by which we assess our criminal justice system. If the possibility of sending someone like Chris Williams to prison for the rest of his life is so obviously unfair, why does the law allow it, let alone mandate it?

I am glad to see the Williams' case continuing to get attention and criticism, but this commentary overlooks what strikes me as one of the worst parts of the deal with federal devil that Williams was forced to accept: in the deal, Williams waived all of his appeal rights to challenge his convictions so that he would not be able to continue with his lawful and courageous challenge to the federal laws with which he was prosecuted.

Prior posts on Williams case and related prosecutions:

January 2, 2013 in Drug Offense Sentencing, Examples of "over-punishment", Mandatory minimum sentencing statutes, Pot Prohibition Issues, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (20) | TrackBack

Monday, December 31, 2012

Will 2013 finally bring the demise of Harris via the Alleyne case?

I have been too busy with family et al. this holiday season to find the time to complete either a 2012 sentencing year-in-review post or a set of 2013 sentencing law and policy predictions.  But, on this last day of 2012, I can helpfully preview what is surely among the top sentencing stories to watch in the next year (especially for Apprendi fans): the Supreme Court's consideration of the Alleyne case, in which the Justices are to consider whether to reverse the mandatory minimum exception to the Apprendi Sixth Amendment doctrine.

This preview comes principally via a new BNA article by David Debold and Matthew Benjamin, which I have been permitted to post here.  The piece is titled "Is Harris a Mandatory Minimums Ruling Whose Time Has Run Out?", and it starts this way:

On Jan. 14, the U.S. Supreme Court will hear argument in Alleyne v. United States, the latest case to explore the contours of the Sixth Amendment’s jury-trial guarantee at the sentencing phase. Since 2000, when the Supreme Court issued its landmark opinion in Apprendi v. New Jersey, the rule has been that, "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt."

On numerous occasions over the past dozen years, the court has applied this rule to invalidate sentencing schemes that allowed judges to find facts that would expose a defendant to a more severe sentencing outcome.  Just last term, in Southern Union Co. v. United States, the court held for the first time that Apprendi applies to the imposition of criminal fines....

Alleyne raises a variation on the Apprendi theme. Unlike cases such as Southern Union, where the court applied the Sixth Amendment to the finding of facts capable of raising the sentencing ceiling, Alleyne will address whether a jury must find facts that raise the floor—otherwise known as mandatory minimums.  This is familiar territory for the Supreme Court. Just a couple of years after Apprendi, the court held in Harris v. United States that the Sixth Amendment does not require that a jury determine the facts that raise the bottom of a statutory sentencing range.  Thus, under Harris, a judge may constitutionally find facts that trigger a mandatory minimum sentence within the existing statutory range, and the judge may find such facts by a preponderance of the evidence, with no need for the government to allege them in an indictment.

The vitality of the holding in Harris has always been tenuous, at best.  The crucial fifth vote came from Justice Stephen G. Breyer, who candidly admitted in his concurrence that he could not "easily distinguish Apprendi v. New Jersey from this case in terms of logic." Instead, he voted with the plurality only because he could "not yet accept [Apprendi’s] rule."  Many petitioners — recognizing that no more than four justices could agree on a principled basis for the Harris holding — have hoped to learn how Breyer would rule if ever forced to admit that Apprendi is here to stay.  But repeated requests for the court to revisit Harris have consistently failed — until the recent grant of certiorari in Alleyne. Alleyne thus presents the court with a long-anticipated opportunity to overrule Harris.

Download Debold-Benjamin BNA piece on Alleyne

Recent prior posts on Alleyne case:

December 31, 2012 in Blakely in the Supreme Court, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Sunday, December 30, 2012

Talk in Georgia of reform of mandatory minimum sentencing provisions

As reported in this local article, headlined "Mandatory minimum sentences face scrutiny: Some prefer to give judges more leeway in some cases," there is now serious talk of serious reform in Georgia of mandatory minimum sentencing provisions. The article starts this way:

Mandatory minimum sentences may get a hard look from state legislators in the upcoming session, and at least some Hall County leaders think that’s a good idea.  “I’m not a legal scholar or professional in the legal world,” state Rep.-elect Lee Hawkins said.  “But just looking at it from a common sense side, I question the need for mandatory minimum sentencing when we have more than capable judges who can listen to a case and make a decision based on the facts.”

The sentencing guidelines established by state law have come under increasing scrutiny as an expensive prison population continues to affect Georgia’s budget.

A criminal justice council created by Gov. Nathan Deal recommended in a 2011 report that judges be given more discretion in some cases.  The council recommended in its most recent 2012 report that the legislature consider implementing a “mandatory minimum safety valve,” which would allow judges more discretion in cases of nonviolent crimes, particularly those drug-related, or those in which criminals have cooperated with police.

For judges, the issue can be a matter of compassion. Former Superior Court Judge John Girardeau said in his experience, problems with mandatory minimums were infrequent but raised concerns.  “It doesn’t happen frequently, but there’s been enough instances where I’ve had to impose a sentence required by law that I thought under the circumstances was an unjust sentence, and that was troubling,” he said.

Hall County District Attorney Lee Darragh, though, said minimum sentencing is beneficial for prosecutors and victims.  “Mandatory minimum sentences are an invaluable tool to prosecutors in this state in ensuring justice for victims of the most serious crimes on the books,” Darragh said.

Many of the laws that created mandatory minimums began in a wave of “tough on crime” feelings in the late 1980s and early 1990s, Girardeau said.  “Back when these laws were enacted, I think there was a perception that some judges were too lenient on some crimes,” he said.

However, democracy is the remedy, Girardeau said.   “Given that our judges are elected, if judges with any consistency impose what the local community feels is being a too lenient a sentence, the judge stands for election every four years,” Girardeau said.  “People can speak at the ballot box.”

December 30, 2012 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (7) | TrackBack

Thursday, December 20, 2012

Split Ninth Circuit en banc ruling rejects effort to qualify for safety-valve via state sentence modification

As reported in this post from back in July 2011, an interesting split Ninth Circuit panel decision in US v. Yepez concluded that federal courts must respect the modification of a state sentence at a subsequent federal sentencing.  The Ninth Circuit subsequently decided to review this matter en banc, and the en banc court today comes down the other way now in US v. Yepez, No. 09-50271 (9th Cir. Dec. 20, 2012) (available here).  Here is a summary of the ruling in Yepez as prepared by court staff:

Affirming one defendant’s federal drug sentence and vacating another, the en banc court held that a state court’s order terminating a defendant’s probation for a state offense “nunc pro tunc” as of the day before the defendant committed his federal crime cannot alter the fact that the defendant had the status of probationer when he committed his federal crime.

The en banc court concluded that the defendants therefore remained ineligible for safety valve relief under 18 U.S.C. § 3553(f) from the mandatory minimum sentence because they were properly assessed two criminal history points pursuant to U.S.S.G. § 4A1.1(d) for committing the federal crime “while under any criminal justice sentence, including probation.”

Dissenting, Judge Wardlaw (joined by Judges Pregerson, Reinhardt, Thomas, and W. Fletcher) wrote that because neither Congress, the safety valve provision, nor the Sentencing Guidelines address this question, fundamental principles of justice, federalism, and comity, as well as the rule of lenity and the parsimony principle of 18 U.S.C. § 3553(a), permit district courts to exercise their broad sentencing discretion when calculating criminal history scores for purposes of safety valve relief, and then to exercise that same discretion in determining the appropriate sentence length.

The per curiam majority opinion in Yepez runs only about six pages, while the spirited dissent runs more than 30 pages and provides a running start (complete with cites to Justice Scalia's new book) for a potential cert petition for the defendants.

Prior related posts:

December 20, 2012 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, December 19, 2012

Novel post-trial federal "sentencing settlement" for Montana medical marijuana provider

As reported in this local article, headlined "In plea deal, most of marijuana caregiver's convictions to be dropped," there has been a notable (and disturbing?) development in a notable (and disturbing?) federal criminal case involving a Montana medical marijuana provider.  Here are the details:

In a highly unusual move, federal prosecutors have agreed to drop six of eight marijuana convictions for Christopher Williams in exchange for his agreeing to waive his right to appeal.  In addition, the government has agreed to ask U.S. District Judge Dana Christensen to dismiss the $1,728,000 criminal forfeiture awarded to the government by a jury earlier this year.

The agreement was outlined under a settlement filed Tuesday in U.S. District Court.  In the document, signed by Williams, U.S. Assistant Attorney Joe Thaggard, and federal public defender Michael Donahoe, they note that this agreement “constitutes the final and best offer to resolve this matter.”

Williams, a medical marijuana caregiver, was convicted by a 12-member jury in September after a four-day trial.  He was facing a minimum mandatory sentence of between 85 and 92 years, due in part to four counts that involved possessing a firearm in furtherance of a drug trafficking crime.  Sentences for those counts, by law, had to run consecutively.

Immediately after his conviction, Thaggard had offered to drop some of the charges, but they still involved a 10-year mandatory minimum sentence.  Williams rejected the offer, saying he was willing to spend the rest of his life in prison to fight what he believed were violations of his constitutional rights.

Under the newest deal, the federal government dropped convictions for conspiracy to manufacture and possess with the intent to distribute marijuana; manufacture of marijuana; possession with intent to distribute marijuana; and three counts of possessing a firearm in furtherance of a drug trafficking crime.  His convictions for one count of possessing a firearm in connection with drug trafficking and one count of possession with intent to distribute marijuana will stand.

He faces a maximum term of five years for the distribution of marijuana charge and a mandatory minimum of five years — and a maximum of life — for the firearm-related charge.

Kari Boiter, a friend of Williams, reported late Tuesday that she had talked to him via a phone call.  He was incarcerated at the time at the Missoula County Detention Facility. Boiter says Williams told her it wasn’t easy for him to give up his constitutional fight, but as he navigated the complex federal penal system, it became clear that punishment was the only thing that was guaranteed.

“With the rest of my life literally hanging in the balance, I simply could not withstand the pressure any longer,” Williams said in a statement released by Boiter.  “If Judge Christensen shows mercy and limits my sentence to the five year mandatory minimum, I could be present at my 16-year-old son’s college graduation.  This would most likely be impossible had I rejected the latest compromise.”

Williams was a partner in Montana Cannabis, which operated distribution centers in Helena, Billings, Miles City and Missoula, and had a large marijuana greenhouse west of Helena on Highway 12.  The four partners — Williams, Chris Lindsey, Thomas Daubert and Richard Flor — said they tried to set the “gold standard” for medical marijuana businesses after voters overwhelmingly passed legislation in 2004 permitting caregivers to distribute marijuana to people with physical ailments.

But under a federal crackdown in March 2011, Montana Cannabis was one of about 25 medical marijuana businesses that were raided, since marijuana is still considered a Schedule 1 narcotic under federal laws. Williams is the only person in Montana to take his case all the way to trial.

Daubert, Lindsey and Flor all pleaded guilty to various marijuana possession and distribution charges. Daubert received a sentence of five years on probation; Lindsey is expected to be sentenced Jan. 4 and prosecutors have agreed to seek a sentence similar to Daubert’s based upon Lindsey’s health problems and limited involvement in Montana Cannabis. Flor, who was sentenced to 10 years in prison, died from health-related complications while incarcerated....

It’s unknown whether Williams’ sentencing hearing, slated for Jan. 4 in Missoula, will still take place on that date.

As a matter of equitable substantive sentencing justice, I am very pleased to learn that Chris Williams is no longer facing a federal mandatory sentence of essentially LWOP for distrubuting marijuana in compliance with Montana law. But as a matter of constitutional law and federal criminal procedure, I find this new novel "sentencing settlement" disturbing from various perspectives. Let me explain:

Start with the government actors: though federal prosecutors have broad charging and bargaining discretion, what gives them authority to drop 75% of presumptively lawful convictions after a presumptive lawful jury trial?  Unless and until prosecutors articulate a constitutional or legal reason for dropping thse convictions, this decision appears to be a form of "prosecution nullification" that strikes me even more lawless than "jury nullification."  Prosecutors frequently contest and complain about the power of juries to nullify a prosecutor's criminal charges based on equitable rather than legal claims; here is appears that federal prosecutors are deciding to nullify a jury's criminal convictions based on equitable rather than legal claims.  

Even more worrisome, federal prosecutors in this case are going to nullify 75% of presumptively lawful convictions after a presumptive lawful jury trial in order to secure a deal to avoid any appellate scrutiny of the (also suspect?) convictions to be preserved.  If federal prosecutors believe there is a sound legal or equitable basis for dropping some of these convictions, why not just drop them without demanding anything in return from the defendant rather than requiring him to give up his statutory rights to appeal his other convictions and sentence?  Prosecutors here are not merely nullifying many jury convictions, but they are doing so only after essentially blackmailing the defendant to give up his rights to contest his other convictions on appeal.

Turning to the defense side:  though I completely understand why Chris Williams (especially after a few months in federal lock-up) decided to give up right to an uncertain appeal in order to avoid the prospect of a certain mandatory LWOP federal sentence, I am not sure how his attorneys can feel fully comfortable representing this deal as a knowing and voluntary settlement.  Based on the comments from the defendant quoted above, it seems plain to me that Chris Williams was essentially coerced by the threat of an extreme (and I think unconstitutional) sentence into giving up his appeal rights.  The jury convictions and the extreme mandatory sentencing terms here functioned in this case as a kind of legal sword of Damocles hanging over the defendant's head; Williams appears to have decided to accept this "sentencing settlement" waiving appeal rights only because prosecutors kept swinging this sword past his neck.

Especially because I want Chris Williams to be able to go to his 16-year-old son’s college graduation, I do not want to prevent him from getting the obvious benefit of this deal.  But because I also want Chris Williams to be able to pursue on appeal all his constitutional claims on all his convictions and sentence, I hope the judge in this case accepts this novel "sentencing settlement" while striking the waiver of appeal rights as, in this setting, void as against public policy.

December 19, 2012 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (20) | TrackBack

Tuesday, November 27, 2012

Is Alleyne a stare decisis sleeper about "super-duper precedents"?

Last month the Supreme Court granted cert in Allen Ryan Alleyne v. United States, in which the questions presented is simply "Whether this Court's decision in Harris v. United States, 536 U.S. 545 (2002), should be overruled."  Because Harris is, of course, one of the holes in Apprendi jurisprudence, hard-core sentencing fans and Sixth Amendment gurus are jazzed about what the Alleyne case might mean for the division of responsibilities of judge and jury in criminal justice decision-making.

However, the notion of whether Harris "should be overruled" has me thinking Alleyne could be a sleeper case concerning the doctrine of stare decisis in constitutional law and practice.  Significantly, Harris did not create the constitutional rule that legislatures could allow sentencing judges to find facts by a preponderance of evidence to trigger the application of mandatory minimum prison terms.  Harris merely reaffirmed this constitutional doctrine in 2002; it was established back in 1986 in McMillan v. Pennsylvania (and the McMillan opinion suggested its holding was just a reaffirmation of constitutional rules first set out in the 1949 case of Williams v. New York).  In other words, Harris is not just a regular precedent: like Roe v. Wade and other controversial rulings often challenged and often reaffirmed, the constitutional doctrines allowing judges to find facts to trigger mandatory minimums arguably qualify as a "super-precedent." 

As some may recall (and as highlighted in this Essay by Professor Michael Gerhardt titled "Super Precedent") the idea of super-precedents has been sometimes espoused by defenders of Roe.  Indeed, with Roe clearly in mind, then-Senate Judiciary Chairman Arlen Specter asked then-SCOTUS-nominee John Roberts during his confirmation hearings whether he agreed there were "super-duper precedents" in constitutional law.  Though I do not fancy myself enough of a constitutional theorist to know whether super-precedents do or should exist, I do know that Alleyne tees up consideration of this idea perhaps as well as any case in recent memory.

November 27, 2012 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

NYCDL amicus brief in Alleyne with an offense/offender kicker

As long time readers know, in first trying to make sense of Blakely, I was drawn to distinguishing between offense conduct and offender characteristics in the application of Apprendi's "bright-line rule."  I first developed this idea in my Conceptualizing Blakely article, advanced it in a Stanford Law Review article, and unpacked it further (with Stephanos Bibas) in Making Sentencing Sensible.  As explained in Conceptualizing Blakely, I believe an offense/offender distinction helps give conceptual content to the prior conviction exception, better links the Apprendi rule to the express text of the Constitution, and resonates with the distinctive institutional competencies of juries and judges.

Consequently, when the Supreme Court decided it would take another trip to Apprendi-land by granting cert in Alleyne to consider the continued validity of the Harris mandatory minimum limit on the the Apprendi rule (basics here and here), I was interested in pitching the Justices yet again on the idea of incorporating an offense/offender distinction into some part of this jurisprudence.  Wonderfully, a terrific group of New York lawyers reached out to me about helping the New York Council of Defense Lawyers on an Alleyne amicus brief, and they were willing to add an offense/offender "kicker" to NYCDL's arguments for overruling Harris.  The NYCDL brief in which I lended a hand was filed yesterday and can be downloaded below.  Here are two key paragraphs from the summary of argument:

As this Court has applied Apprendi’s holding over the last decade, several Justices have expressed con-cerns about the rule’s potential impact on trials and sentencing.  As NYCDL’s experience in New York federal and state courts shows, any such effects will be minimal.  New York’s federal courts, for example, have operated for seven years under a paradigm for drug offenses that substantially parallels the structure all courts would face should this Court overturn Harris.  Practitioners there have been able to apply Apprendi’s rule to drug offenses with relative ease: from the indictment to the jury instructions or to the plea allocution, New York prosecutors and defense lawyers are able to address any facts that expose defendants not just to increased maximums, but also to increased minimums.  Similarly, criminal defense attorneys in New York state courts regularly confront situations where a jury is required to find facts that trigger a mandatory minimum sentence, without apparent difficulty or inefficiency.  These experiences buttress Petitioner’s argument that “there are no practical impediments to overruling Harris.”  Pet. Br. 42.

Moreover, any of the enduring practical concerns identified by certain Justices can be addressed by adopting an approach to overruling Harris that distinguishes between facts that are specific to the offense and facts that are specific to the offender.  The Constitution’s text requires that all facts relating to the alleged “crimes” at issue must be stated in the indictment and presented to the jury, which the Due Process clause requires to be proven beyond a reasonable doubt.  To avoid a requirement that aggravating facts concerning an offender’s past be presented to the jury if such offender-specific characteristics implicate a mandatory minimum, the Court should draw a line for Constitutional purposes that allows judicial determinations of offender-specific facts that are relevant to sentencing, so long as such facts do not alter the range of applicable sentences.  Such a rule comports with the particular competencies of the jury and judge: The jury’s traditional role is to answer questions about the criminal conduct alleged in an indictment, while the judge has historically been expected to assess broader offender-based considerations such as an offender’s criminal history, amenability to rehabilitation, and correctional treatment.  Where, as here, a sentencing judge acts as “the reverser of juries” in finding offense-related facts only by a preponderance of the evidence, the sentence is unconstitutional.  The decision below should be reversed.

Download NYCDL Amicus Brief in Alleyne

November 27, 2012 in Almendarez-Torres and the prior conviction exception, Blakely in the Supreme Court, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Friday, November 16, 2012

Michigan appeals court decides Miller is not retroactive to final juve murder cases

As reported in this local article, which is headlined "Appeals Court: No resentencing for Michigan juvenile lifers, but state law is 'unconstitutional'," an intermediate appellate court has now issued a lengthy ruling on Miller's import and impact in the state up north. Here are the basics from the press report:

The Michigan Court of Appeals today denied a resentencing request for Raymond Carp, 21, who is serving a mandatory term of life in prison without the possibility of parole for a first-degree murder conviction when he was 16....

The ruling invalidated strict sentencing laws in Michigan and other states that treat violent offenders as adults, giving hope to hundreds of inmates serving life terms without hope of parole for crimes they committed as kids.

But the three-judge appeals court panel that heard arguments in the Carp case said today that the Supreme Court decision does not apply retroactively to offenders who already have exhausted the direct appeals process. The high court decision "is procedural and not substantive in nature and does not compromise a watershed ruling," they wrote in a 41-page published opinion.

Michigan is home to more than 350 juvenile lifers, one of the highest totals in the nation, and today's ruling may be appealed to the state Supreme Court.

The appeals court made a point to instruct judges in pending cases that Michigan's current law denying parole is "unconstitutional" when applied to juveniles and urged legislators to revise state statutes to comply with the Supreme Court ruling.

The full opinion in Michigan v. Carp, No. 307758 (Mich. Ct. App. Nov. 15, 2012), is available at this link; it runs 41-pages with nearly 200 footnotes.  Here are the unanimous opinion's final paragraphs:

The United States Supreme Court has, through a series of recent decisions culminating in Miller, indicated that juveniles are subject to different treatment than adults for purposes of sentencing under the Eighth Amendment.  Specifically, we hold that in Michigan a sentencing court must consider, at the time of sentencing, characteristics associated with youth as identified in Miller when determining whether to sentence a juvenile convicted of a homicide offense to life in prison with or without the eligibility for parole.  While Miller does not serve to “foreclose a sentencer’s ability to make that judgment in homicide cases, we require it to take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.”

While Miller is applicable to those cases currently pending or on direct review, we find that in accordance with Teague and Michigan law that it (1) is not to be applied retroactively to cases on collateral review, such as Carp’s, because the decision is procedural and not substantive in nature and (2) does not comprise a watershed ruling. We urge our Legislature to address with all possible expediency the issues encompassed by and resulting from Miller and that necessitate the revision of our current statutory sentencing scheme for juveniles.

In the interim, as guidance for our trial courts for those cases currently in process or on remand following direct appellate review, we find that MCL 791.234(6)(a) is unconstitutional as currently written and applied to juvenile homicide offenders. When sentencing a juvenile, defined now as an individual below 18 years of age, for a homicide offense, the sentencing court must, at the time of sentencing, evaluate and review those characteristics of youth and the circumstances of the offense as delineated in Miller and this opinion in determining whether following the imposition of a life sentence the juvenile is to be deemed eligible or not eligible for parole.  We further hold that the Parole Board must respect the sentencing court’s decision by also providing a meaningful determination and review when parole eligibility arises.

November 16, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Wednesday, November 07, 2012

California voters appear to be approving three-strikes reform, rejecting death penalty repeal

As of the writing of this post, Election Day has been over for three hours in my time zone and is just about to end in California.  According to the result on this official California webpage with right now just over half of all precincts reporting, Proposition 34 calling for the repeal of California's death penalty is losing the popular vote by 46% to 54% and Proposition 36 calling for the reform of California's severe three-strikes sentencing law is winning the popular vote by 68% to 32%.

Assuming that the precinct which have reported are faily representative, it looks as though the voters in California are going to keep the death penalty on the books and are going to curtail the harshest aspects of the state's recidivism sentencing law.  Though I had predicted these basic outcomes (informed by the generally on-point polling data from the last few weeks on these issues), I am a bit surprised that the death penalty repeal vote is so close and that the three-strikes reform vote is so one-sided.

Ain't democracy grand!

November 7, 2012 in Campaign 2012 and sentencing issues , Death Penalty Reforms, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (13) | TrackBack

Monday, November 05, 2012

Examining how Pennsylvania has responded legislatively to Miller

580719_190This local story out of Pennsylvania, headlined "New law gives Lancaster County judges discretion in sentencing juvenile killers," provides effective coverage on Pennsylvania's new sentencing laws for juvenile killers in response to the Supreme Court's Eighth Amendment ruling in Miller this past June.  Here are excerpts:

A newly-passed law could lead to lighter sentences for juvenile killers in Lancaster County and statewide, according to local experts.

Gov. Tom Corbett recently signed Senate Bill 850, making life behind bars no longer a mandatory sentence for juveniles convicted of first- or second-degree murder. In fact, a juvenile convicted of second-degree murder, under the law, can't be sentenced to life without parole.  The changes in sentencing statutes apply to those convicted after June 24....

In pending and future cases under the new law, judges still have the option of ordering a life-without-parole sentence to anyone convicted of 1st-degree murder, regardless of their age.  However, the new law give judges much discretion, and flexibility, in sentencing. "Like it or not, that is the role we entrust to judges," Lancaster County Judge Dennis Reinaker said.  "Nobody is going to agree with every decision we make.  As judges, we have different ideas about things.  And that's as it should be."...

Philadelphia-based Juvenile Law Center, an advocacy group for juvenile offenders, says Senate Bill 850 "misses the mark."  The group, a reputable source in the legal community, claims in an opinion piece that the new provisions "not only leave life without parole as an option for juveniles convicted of first-degree murder, but also impose severe mandatory minimum sentences as the only alternative option."

The bill applies many proposals from the state's District Attorneys Association. Lancaster County District Attorney Craig Stedman said those proposals involved some compromise. "We fought hard to preserve higher mandatory minimums and the life-without-parole option for first-degree murderers," he said on Thursday.  "And in exchange agreed to take the life-without-parole option off the table for second-degree murderers."...

Those convicted of first-degree murder, meaning an act that is pre-meditated with intention to kill, can still receive life-without-parole terms.  A person under age 15 convicted of first-degree murder faces a mandatory 25-year term; a person between 15 and 17 faces a mandatory 35-year term.  "It is critical for the protection of the public that Pennsylvania preserved the option to make sure that the worst of the worst have no possibility of ever being released to kill again," Stedman said.

Mandatory sentences are slightly less in second-degree cases, as locals say they should be. Second-degree murder is a killing that happens during the course of another felony, most commonly burglary or robbery.  The mandatory minimum sentence for a juvenile 15 to 17 convicted of second-degree murder shrinks to 30 years.  Convicted second-degree killers under age 15 face a mandatory minimum of 20 years....

Many lawyers that appeal second-degree cases here argue their client was merely a "lookout," and less culpable than the person who did the actual killing. "That's entirely different than someone who specifically intended to target someone," Lancaster County Judge David Ashworth said. "When I sentence anybody, I consider culpability."

Additional recent local coverage of this new juve sentencing law in the Keystone State can be found in the Reading Eagle via "Sentencing guidelines for juveniles revised" and in the Wilkes Barre Times-Leader via "Juvenile bill makes changes."

November 5, 2012 in Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Offender Characteristics, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, October 31, 2012

Federal district judge refuses to apply arson mandatory minimum (on constitutional grounds?)

This local article from Oregon reports on what appears to be a significant sentencing decision by a federal district judge concerning the application of a mandatory minimum provision.  Here are the details:

Rejecting mandatory minimum five-year sentences as “grossly disproportionate” to the crimes, a federal judge in Eugene on Tuesday sentenced an Eastern Oregon rancher to three months in prison and his adult son to one year and a day for deliberately setting fires on federal land.

A federal jury in June convicted the Harney County pair after a two-week trial in Pendleton. Jurors convicted Dwight Hammond Jr., 70, on a single count of arson for “intentionally and maliciously” setting the 2001 Hardie-Hammond Fire in the Steens Mountain federal management and protection area.  They convicted Steven Dwight Hammond, 43, of the same crime and of a second arson count for similarly setting the 2006 Krumbo Butte Fire.  It burned in the same area and in the Malheur National Wildlife Refuge.  The jury acquitted both men on arson charges in two 2006 fires.

U.S. Judge Michael Hogan agreed with the Hammonds’ defense lawyers that setting fire to juniper trees and sagebrush in the wilderness was not the type of crime that Congress had in mind when it set mandatory sentences of five to 20 years for anyone who “maliciously damages or destroys, or attempts to damage or destroy by means of fire” any federal property. The mandate was part of the Antiterrorism and Effective Death Penalty Act of 1996.

Prosecutors alleged that the father-son owners of Hammond Ranches Inc. set a series of fires on U.S. Bureau of Land Management land where the Hammonds had grazing rights. Prosecutors said the fires were set to reduce the growth of juniper trees and sagebrush, and to accelerate the growth of rangeland grasses for the Hammonds’ cattle....

In a sentencing memo, the defense lawyers noted that both men have served on the French Glen School Board, Community Club and Site Council, and were “instrumental” in founding and financing the French Glen Education Foundation, which funds extracurricular activities for area students.  The Hammonds also regularly host an annual science and careers fair for seven rural schools, contribute money and food to the Harney County 4-H and FFA clubs, and donate meat to the Harney County Senior Center, the memo said.

Assistant U.S. Attorney Frank Papagni acknowledged that the Hammonds, “both of them, have done many wonderful things for the community.”  But he urged Hogan to follow the law, noting that Steven Hammond’s nephew — Dwight Hammond’s grandson — testified that he “thought he was going to get burned up” when flames moved toward him as the then-13-year-old followed his uncle’s orders to light brush with matches.

The arsons also endangered the lives of BLM firefighters and hunters camping near one of the blazes, the government alleged.  “Congress decided that this particular offense should carry a mandatory, statutory minimum term of five years,” Papagni wrote in the government’s sentencing memo.  “The evidence of defendants’ guilt was substantial. The jury’s verdict of guilt for this particular offense mandates imposition of the required statutory minimum term, as the statute constrains this court’s discretion.”

Hogan disagreed, imposing the lesser terms. He also sentenced both Hammonds to three years of postprison supervision and required them to surrender their firearms. The judge also allowed the men to stagger their sentences in order to keep operating their ranch. He ordered Dwight Hammond to report to prison in January, with Steven Hammond to begin his sentence upon his father’s release.

As the title of this post indicates, it seems from the first sentence of this report that Judge Hogan concluded it would be unconstitutional based on the Eighth Amendment to apply a five-year mandatory minimum under the circumstances.  (Side notethis companion article reports that this sentencing took place on Judge Hogan's last day on the bench.) 

It will be interesting to follow if federal prosecutors seek to appeal this sentence to the Ninth Circuit.  I predict that the feds will fear a "bad panel" and thus a "bad ruling" from the Ninth Circuit and thus will decide not to appeal.

October 31, 2012 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (34) | TrackBack

Tuesday, October 30, 2012

Tenth Circuit continues to struggle through ACCA's ever-elusive residual clause

A helpful reader alerted me to a series of recent notable Tenth Circuit decisions regarding application of the Armed Career Criminal Act and sent along this detailed summary for posting (which probably only hard-core ACCA fans will enjoy, but they should enjoy it lots):

Federal practitioners know that the meaning of the ACCA/4B1.2(a)(2)’s residual clause is one of the most frequently occurring yet confusing issues in federal sentencing law. And the confusion does not seem to be subsiding. Perhaps best illustrating this are three cases issued by the Tenth Circuit within just a two-week time span.

First came US v. Sandoval, No. 11-1303 (10th Cir. Oct. 9, 2012) (available here). The issue there was whether a prior conviction for “heat-of-passion” assault should be classified as a violent felony under the ACCA’s residual clause.  The heat-of-passion offense read:  "If assault in the second degree is committed under circumstances where the act causing the injury is performed, not after deliberation, upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the person causing the injury sufficiently to excite an irresistible passion in a reasonable person."

The Sandoval court held that such a crime is an ACCA violent felony. But, in doing so, the opinion contained some telling language. The opinion began by explaining: “This is another of those cases, now becoming legion[FN1] where we must decide if a prior conviction constitutes a violent felony under the Armed Career Criminal Act (ACCA).” Footnote 1 then explained how courts continue to face this issue and yet “[t]he law is not well-settled.”  A few pages later, the opinion lamented how Sykes, the Supreme Court’s latest excursion into residual-clause land, is “not a model of clarity."  Footnote 8 then went on for four paragraphs about the confusion.

Sandoval raises a number of very interesting questions.  Among them:

1) What is the meaning of Begay post-Sykes?

2) Is a heat-of-passion offense akin to the type of mens rea crime at issue in Begay, or is Sykes the more analogous case?

3) Is a Begay analysis ever needed when the offense at issue is not one of strict liability, negligence, or recklessness?

4) If so, is a heat-of-passion offense “similar in kind” to the ACCA example crimes, none of which involve either the victim’s provocation or an irresistible passion of a reasonable person?

5) Is Begay's "in kind" analysis solely limited to an inquiry about being "purposeful, violent and aggressive," or can an offense be different from the example crimes "in kind" in a different way?

The first question is the big one, and questions two through five seem to inextricably follow from the first. Despite this confusion, the Tenth Circuit held that a heat-of-passion offense — where A) the victim provokes the offense, B) the offender is acting pursuant to an irresistible passion in a reasonable person, and C) there is no deliberation — is similar to the ACCA enumerated crimes. With so many important questions involved, this may be the perfect post-Sykes case to clarify the US Supreme Court’s residual clause precedents.

Nine days later, the Tenth Circuit returned to the uncertainty surrounding the residual clause in US v. Duran, No. 11-1308 (10th Cir. Oct. 18, 2012) (available here).  There, the Circuit held that aggravated assault by recklessly causing bodily injury does not satisfy the residual clause (this time under USSG § 4B1.2(a)(2)). Even though the prior offense required causing bodily injury to the victim, the Circuit reasoned that Begay prevents reckless conduct from satisfying the residual clause.  This certainly appears to be the correct outcome; Sykes itself implies that reckless crimes are outside of the residual clause.  Nevertheless, the Tenth Circuit panel still questioned its earlier precedent on that issue, and wondered aloud “if Begay is still good law.” See footnote 1.

Finally, four days after that, the Tenth Circuit again found itself in residual-clause land with US v. Maldonado, No. 11-2168 (10th Cir. Oct. 22, 2012) (available here). This time, the Tenth Circuit held that California’s first-degree burglary statute, although not constituting the generic, enumerated offense of burglary, did satisfy the ACCA’s residual clause.  The court reached this result by applying “a two-part test, asking first whether the offense poses a serious potential risk of physical injury to another and second, whether the offense is ‘roughly similar’ in kind and degree of risk as the enumerated crimes in the ACCA.” The Circuit stressed again — as it did in Sandoval and Duran — that part two of the test is “subject to some debate,” noting how the Supreme Court is “splintered” on part-two.  See footnote 6.  The Maldonado panel also felt it important to remind us of Sandoval’s commentary on this confusion. See footnote 7.

The Tenth Circuit is not alone in tiring of the “legion” of cases it must decide on the ever-elusive meaning of the residual clause.  And its frustration over this uncertain area of the law is warranted.  Tellingly, the three opinions are each authored by a different judge, and they constitute seven of the nine active Tenth Circuit judges and one Senior Judge. Ultimately, the Supreme Court should heed the Tenth Circuit’s frustration and clarify this “splintered” issue sooner rather than later.  (Or, for that matter, declare the clause void for its vagueness.)  The issue is too important and commonly occurring to continue leaving the lower courts without much-needed guidance.

October 30, 2012 in Mandatory minimum sentencing statutes, Offender Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, October 26, 2012

"How Mandatory Minimums Forced Me to Send More Than 1,000 Nonviolent Drug Offenders to Federal Prison"

The title of this post is the headline of this new commentary authored by US District Judge Mark Bennett and published in The Nation. Here are is how it gets going:

Growing up in blue collar Circle Pines, Minnesota, in the 1950s, raised by parents from the “Greatest Generation,” I dreamed only of becoming a civil rights lawyer. My passion for justice was hard-wired into my DNA.  Never could I have imagined that by the end of my 50s, after nineteen years as one of 678 federal district court judges in the nation, I would have sent 1,092 of my fellow citizens to federal prison for mandatory minimum sentences ranging from sixty months to life without the possibility of release.  The majority of these women, men and young adults are nonviolent drug addicts.  Methamphetamine is their drug of choice.  Crack cocaine is a distant second.  Drug kingpins? Oh yes, I’ve sentenced them, too.  But I can count them on one hand. While I’m extremely proud of my father’s service in World War II, I am greatly conflicted about my role in the “war on drugs.”

You might think the Northern District of Iowa — a bucolic area home to just one city with a population above 100,000 — is a sleepy place with few federal crimes.  You would be wrong. Of the ninety-four district courts across the United States, we have the sixth-heaviest criminal caseload per judge.  Here in the heartland, I sentence more drug offenders in a single year than the average federal district court judge in New York City, Washington, Chicago, Minneapolis and San Francisco — combined.  While drug cases nationally make up 29 percent of federal judges’ criminal dockets, according to the US Sentencing Commission, they make up more than 56 percent of mine.  More startling, while meth cases make up 18 percent of a judge’s drug docket nationally, they account for 78 percent of mine.  Add crack cocaine and together they account for 87 percent.

Crack defendants are almost always poor African-Americans.  Meth defendants are generally lower-income whites.  More than 80 percent of the 4,546 meth defendants sentenced in federal courts in 2010 received a mandatory minimum sentence.  These small-time addicts are apprehended not through high-tech wiretaps or sophisticated undercover stings but by common traffic stops for things like nonfunctioning taillights.  Or they’re caught in a search of the logs at a local Walmart to see who is buying unusually large amounts of nonprescription cold medicine.  They are the low-hanging fruit of the drug war.  Other than their crippling meth addiction, they are very much like the folks I grew up with.  Virtually all are charged with federal drug trafficking conspiracies — which sounds ominous but is based on something as simple as two people agreeing to purchase pseudoephedrine and cook it into meth.  They don’t even have to succeed.

I recently sentenced a group of more than twenty defendants on meth trafficking conspiracy charges.  All of them pled guilty.  Eighteen were “pill smurfers,” as federal prosecutors put it, meaning their role amounted to regularly buying and delivering cold medicine to meth cookers in exchange for very small, low-grade quantities to feed their severe addictions.  Most were unemployed or underemployed.  Several were single mothers.  They did not sell or directly distribute meth; there were no hoards of cash, guns or countersurveillance equipment.  Yet all of them faced mandatory minimum sentences of sixty or 120 months.  One meth-addicted mother faced a 240-month sentence because a prior meth conviction in county court doubled her mandatory minimum.  She will likely serve all twenty years; in the federal system, there is no parole, and one serves an entire sentence minus a maximum of a 15 percent reduction rewarded for “good time.”

Several years ago, I started visiting inmates I had sentenced in prison.  It is deeply inspiring to see the positive changes most have made.  Some definitely needed the wake-up call of a prison cell, but very few need more than two or three years behind bars. These men and women need intensive drug treatment, and most of the inmates I visit are working hard to turn their lives around.  They are shocked — and glad — to see me, and it’s important to them that people outside prison care about their progress.  For far too many, I am their only visitor.

If lengthy mandatory minimum sentences for nonviolent drug addicts actually worked, one might be able to rationalize them. But there is no evidence that they do.  I have seen how they leave hundreds of thousands of young children parentless and thousands of aging, infirm and dying parents childless.  They destroy families and mightily fuel the cycle of poverty and addiction.  In fact, I have been at this so long, I am now sentencing the grown children of people I long ago sent to prison.

October 26, 2012 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (20) | TrackBack

Wednesday, October 03, 2012

Is SCOTUS gearing up to reconsider Harris and the Sixth Amendment's application to mandatory minimums?

The question in the title of this post is prompted by an exciting paragraph deep within John Elwood's exciting new SCOTUSblog post excitingly titled "Relist (and Hold) Watch." Here it is:

Unsurprisingly, the first real order list after the Long Conference left us with a boatload of relists.  Eleven, in fact.  Apprendi purists, ready the confetti:  Two of the relists, Alleyne v. United States, 11-9335, and Dotson v. United States, 11-9873 (which we first discussed in May), ask the Court to overrule Harris v. United States (2002).  You might recall that, in Harris, a plurality headed by Justice Kennedy plus Justice Breyer’s concurrence in the judgment held that facts that increased the mandatory minimum sentence need not be decided by the jury.  Two members of the Harris majority (Chief Justice Rehnquist and Justice O’Connor) are gone, as are two of the dissenters (Justices Stevens and Souter).  It would be a pretty big deal if the New ‘n’ Improved Court revisited Harris.  But I will try to curb my enthusiasm in case the Court is pulling its Lucy-and-the-football trick again, like it did both during OT2010 and last Term when it relisted cases seeking to revisit another sentencing rule in tension with Apprendi, Almendarez-Torres v. United States (holding that the fact of a prior conviction could be found by a judge rather than submitted to a jury) – only to deny those petitions without comment.

I have so much to say on this topic, but I need to first get my confetti ready and also put on my black-striped Charlie Brown yellow shirt.

October 3, 2012 in Blakely in the Supreme Court, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Friday, September 28, 2012

Second Circuit reiterates that mandatory minimum statutes trump parsimony instruction of 3553(a)

The Second Circuit has a brief sentencing opinion this morning in US v. Carter, No. 11-3605 (2d Cir. Sept. 28, 2012) (available here), which would have been huge news had it come out the other way. As resolved, the decision still seemed blog-worthy and here is how it begins:

This case reminds us of the tension in federal criminal law between two competing but overlapping systems for imposing a sentence.  In most cases, a sentencing court computes the relevant range under the U.S. Sentencing Guidelines, now advisory under the teaching of United States v. Booker, 543 U.S. 220 (2005), before making its own determination of an appropriate punishment after considering the general sentencing factors in § 3553(a), including the “parsimony” provision that a sentence must not be “greater than necessary” to serve appropriate sentencing objectives. 18 U.S.C. § 3553(a).  For certain criminal offenses, however, Congress has created a “mandatory minimum” term of imprisonment — a blunt directive that may require judges to give sentences that they consider unduly punitive.  See Dorsey v. United States, 132 S. Ct. 2321, 2326–29 (2012) (describing the development of and relationship between these two sentencing regimes).

The question presented in this appeal is whether a statutory mandatory minimum provision binds a federal sentencing court when the relevant statute does not specify that it overrides the “parsimony” provision in § 3553(a).  For the reasons stated below, we hold that a statutory mandatory minimum binds a sentencing court by explicitly providing a sentencing floor.  The relevant statute need not specify that it overrides the “parsimony” provision or other general sentencing considerations in § 3553(a).  Therefore, we affirm the judgment of the District Court.

September 28, 2012 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (6) | TrackBack