Wednesday, February 24, 2010

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

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

Some recent related posts:

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

Monday, February 22, 2010

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

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

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

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

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

Sunday, February 21, 2010

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

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

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

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

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

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

Saturday, February 20, 2010

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

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

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

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

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

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

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

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

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

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

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

Some related posts:

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

Thursday, February 18, 2010

A telling attack on mandating ignition interlocks for all drunk drivers

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

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

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

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

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

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

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

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

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

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

Some related posts on sentencing drunk drivers:

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

Wednesday, February 10, 2010

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

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

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

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

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

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

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

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

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

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

Tuesday, February 02, 2010

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

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

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

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

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

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

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

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

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

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

Friday, January 29, 2010

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

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

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

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

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

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

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

Monday, January 25, 2010

SCOTUS grants cert on another mandatory minimum sentencing issue

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

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

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

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

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

Friday, January 15, 2010

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

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

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

Friday, January 08, 2010

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

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

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

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

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

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

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

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

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

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

Wednesday, December 16, 2009

Notable and insightful Blakely habeas ruling from the Sixth Circuit

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, December 11, 2009

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

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

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

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

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

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

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

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

Tuesday, December 08, 2009

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

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

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

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

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

Download Former NJ AG Letter re drug mandatories

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

Thursday, November 12, 2009

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

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

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

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

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

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

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

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

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

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

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

Some related recent posts:

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

Sunday, November 01, 2009

State judge calls for repeal of school-zone mandatory sentences

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

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

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

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

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

Recent related post:

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

Friday, October 23, 2009

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

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

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

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

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

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

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

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

Sunday, October 18, 2009

New report on mandatory minimum sentences from Pennsylvania Commission on Sentencing

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

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

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

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

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

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

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

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

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

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

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

Thursday, October 15, 2009

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

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

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

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

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

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

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

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

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

Tuesday, October 13, 2009

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

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

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

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

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

Tuesday, October 06, 2009

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

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

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

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

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

Thursday, October 01, 2009

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

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

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

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

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

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

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

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

Wednesday, September 30, 2009

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

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

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

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

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

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

Saturday, September 19, 2009

Lots of useful information in latest FAMMGram

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

Check it out.

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

Thursday, September 10, 2009

FAMM survey on views about sentencing reform

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

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

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

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

Monday, September 07, 2009

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

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

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

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

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

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

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

Friday, July 24, 2009

"Momentum Builds to Equalize Cocaine Penalties"

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

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

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

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

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

Wednesday, July 22, 2009

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

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

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

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

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

Tuesday, July 21, 2009

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

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

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

Here is how the document itself starts:

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

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

Some related recent posts:

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

Tuesday, July 14, 2009

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

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

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

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

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

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

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

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

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

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

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

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

Some related old and new posts:

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

Sunday, July 12, 2009

House hearing on "Mandatory Minimums and Unintended Consequences"

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

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

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

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

Wednesday, May 13, 2009

Spring issue of FAMMGram now available

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

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

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

Tuesday, May 12, 2009

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

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

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

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

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

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

Download Szymanski Sentencing Memorandum

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

Download Szymanski Order re Release Pending Appeal

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

Wednesday, April 29, 2009

Two SCOTUS losses for criminal defendants

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

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

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

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

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

Watching the webcast of the Senate crack disparity hearing

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

Some recent related posts:

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

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

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

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

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

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

Tuesday, April 28, 2009

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

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

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

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

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

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

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

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

Some recent related posts:

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

Friday, April 24, 2009

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

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

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

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

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

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

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

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

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

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

Monday, March 16, 2009

Another notable new little data report from the USSC

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

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

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

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

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

Thursday, March 05, 2009

Oral argument transcripts in sentencing cases now available

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

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

Notable Second Circuit ruling on interplay of mandatory minimum statutes

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

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

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

Wednesday, March 04, 2009

Federal sentencing statute day at the Supreme Court

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

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

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

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

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

Thursday, February 26, 2009

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

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

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

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

Oral argument transcript in Flores-Figueroa at 42. 

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

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

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

Wednesday, February 18, 2009

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

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

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

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

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

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

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

Wednesday, January 21, 2009

One measure of the impact of the ACCA ruling in Chambers

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

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

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

Thursday, January 15, 2009

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

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

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

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

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

Wednesday, January 14, 2009

New FAMMGram includes slate of federal sentencing recommendations

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

1.  NEAR TERM: Strategic reforms

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

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

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

Friday, December 12, 2008

Maine judge finds mandatory sentence constitutionally excessive in unusual setting

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

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

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

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

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

Wednesday, December 03, 2008

"Main Threat to Burress Is a Sentencing Law"

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

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

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

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

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

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

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

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

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

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

Monday, December 01, 2008

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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