Sunday, March 13, 2011

Oregon report indicates mandatory minimums transfer sentencing power to prosecutor

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

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

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

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

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

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

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

Saturday, March 12, 2011

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

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

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

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

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

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

Some posts on this FSA issue:

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

Tuesday, March 01, 2011

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

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

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

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

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

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

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

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

Thursday, February 10, 2011

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

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

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

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

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

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

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

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

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

Friday, January 21, 2011

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

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

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

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

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

Download Santana FSA opinion

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

Some posts on the Santana litigation and recent related cases:

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

Thursday, January 20, 2011

Notable defense of parole focused on prosecutorial discretion

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

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

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

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

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

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

Tuesday, January 11, 2011

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

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

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

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

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

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

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

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

 Download FSA green_order

Download FSA green_attachment

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

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

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

Friday, January 07, 2011

SCOTUS takes up two plea bargaining cases and another ACCA

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

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

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

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

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

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

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

Wednesday, January 05, 2011

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

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

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

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

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

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

Download Cleotha Johnson FSA order

Some recent related posts:

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

Wednesday, December 15, 2010

"Top prosecutors oppose sentencing 'reform' proposals"

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

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

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

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

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

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

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

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

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

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

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

Sunday, December 12, 2010

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

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

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

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

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

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

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

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

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

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

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

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

Thursday, December 02, 2010

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

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

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

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

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

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

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

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

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

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

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

Monday, November 29, 2010

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

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

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

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

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

Download Letter to Hon Preet Bharara 11-29-10

Some recent related posts:

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

Thursday, November 18, 2010

"Arizona mandatory-sentencing laws targeted"

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

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

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

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

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

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

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

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

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

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

Tuesday, November 16, 2010

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

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

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

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

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

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

Some recent related posts:

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

Monday, November 15, 2010

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

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

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

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

Friday, November 05, 2010

US Sentencing Commission report on mandatory minimums coming in Fall 2011

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

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

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

Thursday, November 04, 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, November 02, 2010

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

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

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

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

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

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

Sunday, October 31, 2010

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

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

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

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

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

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

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

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

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

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

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

Wednesday, October 27, 2010

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

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

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

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

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

Sunday, October 24, 2010

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

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

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

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

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

Download FSA application letter from DAB

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

Monday, October 04, 2010

SCOTUS kicks off new Term considering application of gun mandatory minimums

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

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

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

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

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

Saturday, October 02, 2010

Effective review of the five new SCOTUS criminal justice cases

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

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

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

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

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

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

Friday, October 01, 2010

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

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

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

Related post:

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

Wednesday, September 29, 2010

Seventh Circuit finds that sentencing speed kills procedural reasonableness

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

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

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

Tuesday, September 28, 2010

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

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

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

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

Sunday, September 26, 2010

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

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

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

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

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

Tuesday, September 21, 2010

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

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

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

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

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

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

Monday, September 20, 2010

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

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

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

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

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

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

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

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

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

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

Tuesday, August 17, 2010

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

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

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

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

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

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

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

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

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

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

Tuesday, August 10, 2010

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

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

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

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

[I] suggest the following:

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

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

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

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

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

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

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

Monday, August 02, 2010

Massachusetts partially reforms its mandatory drug sentencing laws

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

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

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

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

Thursday, July 29, 2010

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

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

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

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

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

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

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

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

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

Wednesday, July 28, 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Some recent related posts:

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

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

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

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

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

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

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

Sunday, July 11, 2010

Pennsylvania sentencing commission urging repeal of school zone mandatory sentencing provisions

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

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

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

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

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

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

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

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

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

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

Tuesday, June 22, 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wednesday, June 16, 2010

"Judges Give Thumbs Down to Crack, Pot, Porn Mandatory Minimums"

The title of this post is the headline of this effective article by Marcia Coyle in today's National Law Journal reporting on some of the highlights of the US Sentencing Commission's recently released results from a survey of federal district judges about their views on post-Booker sentencing realities.  Here is how the piece begins:

Mandatory minimum sentences are too high, restitution for crime victims should be available in all cases, and judge-specific data on sentencing should not be reported, according to a survey of more than 600 federal trial judges.

From January through March of this year, the U.S. Sentencing Commission for the first time questioned federal judges on their views about sentencing under the advisory guidelines system in effect since 2005. The U.S. Supreme Court struck down the mandatory sentencing guideline system in its 2005 ruling U.S. v. Booker.

The survey, released last week, drew responses from 639 of the 942 judges to whom it was sent -- a 67.8 percent response rate. The 639 judges who responded had sentenced 116,183 offenders, or 79 percent of those sentenced during fiscal 2008 and 2009.

Sixty-two percent of the judges said the mandatory minimums that they were required to impose were too high, particularly for crack cocaine (76 percent), receipt of child pornography (71 percent) and marijuana (54 percent). However, strong majorities believed the sentencing guideline ranges for most federal offenses were appropriate, with the exception again of those for crack cocaine, marijuana, and the possession and receipt of child pornography, which they said were too high.

When asked to choose among sentencing systems without guidelines, with mandatory guidelines, with advisory guidelines or with mandatory guidelines that conform with the Sixth Amendment, 75 percent of the responding judges chose the current system of advisory guidelines....

Among the survey's other findings, 54 percent agreed somewhat or strongly that pre-sentence reports should be required to include information that a crime victim wants included. But 68 percent said victims should not have the opportunity to comment on the pre-sentence report before sentencing. Sixty-six percent agreed somewhat or strongly that courts should have the authority to order restitution for victims in all cases.

June 16, 2010 in Booker and Fanfan Commentary, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, June 03, 2010

Defendant experiences another reversal of ACCA fortunes via Fourth Circuit's reversal

The Fourth Circuit has an interesting ruling today in US v. Pettiford, No. 09-4119 (4th Cir. June 3, 2010) (available here), which reverses a district court's decision to reduce an ACCA sentence by granting relief in a 2255 action.  Here is how the panel ruling in Pettiford gets started:

Appellee Antoine Jerome Pettiford pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), and received an enhanced sentence of 188 months’ imprisonment, in part because he had five prior convictions which qualified him as a career criminal under the provisions of the Armed Career Criminal Act (the "ACCA"), 18 U.S.C. § 924(e).   Two of the five state court convictions were subsequently vacated, and Pettiford brought a petition under 28 U.S.C. § 2255 for post-conviction relief from the enhanced federal sentence.  The district court granted Pettiford’s petition, holding that as a result of the vacatur of the two state convictions, Pettiford was entitled to relief.  The district court then resentenced Pettiford to a term of 100 months’ imprisonment. For the reasons that follow, we reverse the district court’s order and remand with instructions to reinstate Pettiford’s original sentence.

June 3, 2010 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Wednesday, June 02, 2010

Eleventh Circuit panel reverses ruling that 30-year mandatory AWA sentence for attempted sex offense is unconstitutional

Long-time readers may recall a notable district court opinion in US v. Farley from September 2008 (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 child.  (Some may also recall the interesting twist, discussed in this February 2009 post, that a group of House Republicans filed a brief in the Eleventh Circuit contending that the 30-year mandatory minimum prison sentence was constitutionally sound). 

This afternoon an Eleventh Circuit panel issued this 112-page opinion in Farley, which starts and ends this way: 

In the Fall of 2006, Kelly Farley was a thirty-seven-year old businessman living in Texas with a pregnant wife and five children, ranging in age from one to fourteen. His interest in families was not limited to his own, and his sexual interests extended beyond what our society and its laws will tolerate. Farley is sexually attracted to girls he described as “still innocent, but starting to bud a little,” and he wanted to have sex with a girl who was around nine to eleven years old. Using the internet, he made contact with the mother of a child of that age and set out to persuade her not only to let him have sex with her daughter but also to join him in sexually violating the child.

To reach that goal Farley engaged in a steady stream of chat room conversations, emails, and phone calls over a period of seven months with the mother, leading up to his arrival in Atlanta carrying directions to the place where he planned to rendezvous with her and her eleven-year-old daughter. Farley’s actions led to his arrest, which led to his trial, which led to his conviction and sentence, which led to the government’s appeal of that sentence, which led to Farley’s cross-appeal of both his conviction and sentence, all of which led to this opinion....

We AFFIRM Farley’s convictions on both counts, and his sentence on Count Two.  We REVERSE the district court’s order declaring unconstitutional the application of the mandatory minimum sentence under 18 U.S.C. § 2241(c), VACATE Farley’s sentence on Count One, and REMAND with instructions to impose a sentence no less than that required by § 2241(c).

The discussion of Eigth Amendment law and its application runs roughly the last 20 pages of this long opinion and it relies heavily on the Supreme Court's 1991 Harmelin ruling in the course of deciding that "the thirty-year sentence required by § 2241(c) in light of Farley’s crime does not lead to an inference of gross disproportionality." Here is some notable passages from this discussion:

The crime in Harmelin was possession of 672 grams of cocaine.  The crime here is travel across state lines with intent to sexually violate an underage child.  While it is true that Farley, through no fault of his own, was unable to inflict that harm on an actual victim, the same could be said of Harmelin.  After all, the 672 grams of cocaine he possessed was seized by police before any of it could be further distributed or consumed, thereby preventing harm to society.  See id. at 988, 111 S.Ct. at 2698 (lead opinion)....

The Court stated in Harmelin that the “possession, use, and distribution” of illegal drugs are serious problems affecting the health and welfare of the population, and it dismissed the argument that Harmelin’s crime was nonviolent and victimless as “false to the point of absurdity.”  Id. at 1002, 111 S.Ct. at 2705–06.  By the same token, the sexual abuse of children, and the use of the internet to facilitate that abuse, are serious problems affecting the health and welfare of the nation.  The Supreme Court, this Court, and other courts have expounded at length on the severity of the crimes involving the sexual abuse of children and the extent of the harm caused by those crimes.....

We would find any suggestion that child sexual abuse is a nonviolent crime as absurd as the Supreme Court found the same suggestion about possession of 672 grams of cocaine.  See Harmelin, 501 U.S. at 1002, 111 S.Ct. at 2706 (plurality opinion).  Even more so.

I would expect that the defendant in this case to seek en banc and/or cert review of this Eighth Amendment ruling by the panel in Farley.  And I would predict, at least as of this writing, that the full Eleventh Circuit and the Supreme Court will not want to hear this case and that this Circuit ruling will thereby be allowed to stand.

Some related posts:

June 2, 2010 in Mandatory minimum sentencing statutes, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Monday, May 31, 2010

"Federal Sentencing at a Crossroads: A Call for Leadership"

The title of this post is the title of the terrific panel discussion put together last week by NYU's Center on the Administration of Criminal Law and the Federal Bar Council. The discussion was moderated by The Honorable John Gleeson, United States District Judge, United States District Court for the Eastern District of New York, and included as panelists:

The NYU Center has made the video of the event available via this link, and it describes the proceedings this way:

This program brought together leaders in sentencing policy to discuss various questions, including: Who is -- and who should be -- in charge of federal sentencing policy?  What changes are desirable, and how can change best be accomplished?  Why is change in favor of defendants so elusive, even in narrow contexts where prosecutors agree it is necessary? Should sentencing policy at the federal level be linked to its fiscal consequences, as it is in the states?  The program explored these and other questions in part through the window provided by recent developments related to nonviolent drug offenders, including pending legislation to reduce the disparity between federal sentences for crack cocaine and powder cocaine offenses.

May 31, 2010 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, May 29, 2010

Notable reactions from notable officials to the new Holder memo for federal prosecutors

This new post at The BLT, which is headlined "Holder Memo Calls for Flexibility in Charging, Sentencing," reports on the new memorandum from Attorney General Holder to all federal prosecutors concerning "Department Policy on Charging and Sentencing" which replaces older "Ashcroft" and "Comey" memos concerning how federal prosecutors are supposed to make basic charging, plea bargaining and sentencing decisions (basics here).  In addition to describing the memo (and the testimony from DOJ earlier this week at the Sentencing Commission's public hearing (basics here)), this post has these notable quotes from in-the-know folks about the memo's import:

Sentencing Commission Vice Chairman William Carr Jr. said the Holder memo “clearly” gives more flexibility to assistant U.S. attorneys.  In particular, Carr, a former federal prosecutor in Pennsylvania who retired in 2004, said the new guidance suggests there will be more flexibility to not argue for mandatory-minimum sentences....

Senate Judiciary Chairman Patrick Leahy (D-Vt.) released this statement Thursday afternoon on the Holder memo: “With this new policy, Attorney General Holder has taken a further step toward restoring the Justice Department’s commitment to enforcing the law aggressively, effectively, and fairly.  I applaud Attorney General Holder for his forward-thinking and common-sense update to the Justice Department’s policies on charging criminal cases, making plea deals, and seeking sentences.  This is a marked change in the policies implemented by the Bush Justice Department.  By emphasizing both the importance of consistency and the need to carefully consider the specific facts and circumstances of each case, Attorney General Holder ensures that the Department will strive to reach the most fair and appropriate result in each case.  His new policy gives prosecutors the flexibility they need to secure important plea deals and charge cases in the way best calculated to obtain convictions.”

Some recent related posts:

May 29, 2010 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, May 28, 2010

Some coverage of yesterday's US Sentencing Commission hearing

Through blog reports and press releases, one can cobble together a basic sense of the basic feel of the testimony and comments yesterday at the US Sentencing Commission's public hearing about mandatory minimum sentencing statutes and federal sentencing policy (background here; early report here).  Here are some links:

May 28, 2010 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, May 27, 2010

Nuanced and astute (and vague) testimony from DOJ at Sentencing Commission hearing on mandatory minimums

As detailed in this prior post, the United States Sentencing Commission today is conducting a public hearing in Washington DC "to gather testimony from invited witnesses regarding the issue of statutory mandatory minimum penalties in federal sentencing."  The agenda and a list of invited witnesses scheduled to testify today at the USSC can be found here, and this morning the bulk of the written testimony submitted by these witnesses are now linked through this agenda page.

Providing a "View from the Executive Branch" (namely the views of the current US Department of Justice) is Sally Quillian Yates, US Attorney for the Northern District of Georgia.  Her submitted written testimony is available at this link, and it is today's must-read for anyone and everyone still following post-Booker sentencing debates and curious about how the Obama Justice Department is staking out ground in these debates.  Just about every paragraph of the DOJ testimony coming from USA Sally Gates is interesting and important, and here are a few extended snippets that really caught my attention:

My testimony today is offered in the context of an ongoing study at the Department of Justice that began soon after Attorney General Holder took office.... The Sentencing and Corrections Working Group is conducting the most comprehensive review of federal sentencing and corrections in the Executive Branch since at least the passage of the Sentencing Reform Act....

The results of the Working Group are guiding the Department’s policies regarding sentencing.  To begin, the Administration has been working hard with Members of Congress to see the enactment this year of legislation to address the current disparity in sentencing between crack and powder cocaine offenses, including the existing 100-to-1 quantity ratio. In addition, last week, the Attorney General issued a new Department policy on charging and sentencing in a memorandum to all federal prosecutors.  This new policy recognizes the reality of post-Booker sentencing and the need for an appropriate balance of consistency and flexibility to maximize the crime-fighting impact of federal law enforcement.  We are also working on new ways to examine racial and ethnic disparities in sentencing beyond federal cocaine sentencing policy to determine if disparities are the result of race-neutral application of statutes and charging decisions and otherwise justified; and we are working on initiatives to promote more effective prisoner reentry.  These and other measures will be announced shortly....

The federal prison population, which was about 25,000 when the Sentencing Reform Act was enacted into law, is now over 210,000.  And it continues to grow.  Much of that growth is the result of long mandatory sentences for drug trafficking offenders.  While these and other mandatory sentences have been important factors in bringing down crime rates, we also believe there are real and significant excesses in terms of the imprisonment meted out for some offenders under existing mandatory sentencing laws, especially for some non-violent offenders. Moreover, the Federal Bureau of Prisons is now significantly overcapacity, which has real and detrimental consequences for the safety of prisoners and guards, effective prisoner reentry, and ultimately, public safety.

At the same time, since the Supreme Court’s decision in Booker, Sentencing Commission research and data – and the experience of our prosecutors – have shown increasing disparities in sentencing.  We are concerned by, and continue to evaluate, research and data that indicate sentencing practices (particularly those resulting in lengthier incarcerations) are correlated with the demographics of offenders.  Further, with more and more sentences becoming unhinged from the sentencing guidelines, undue leniency has become more common for certain offenders convicted of certain crime types.  For example, for some white collar offenses – including high loss white collar offenses – and some child exploitation offenses, sentences have become increasingly inconsistent.  The federal sentencing guidelines, which were originally intended to carry the force of law, no longer do. Thus, for these offenses for which there are no mandatory minimums, sentencing decisions have become largely unconstrained as a matter of law, except for the applicable statutory maximum penalty. Predictably, this has led to greater variation in sentencing. This in turn undermines the goals of sentencing to treat like offenders alike, eliminate unwarranted disparities in sentencing, and promote deterrence through predictability in sentencing.

Our study has led us to the conclusion that in an era of advisory guidelines, mandatory minimum sentencing statutes remain important to promote the goals of sentencing and public safety.  At the same time, we recognize that some reforms of existing mandatory minimum sentencing statutes are needed and that consideration of some new modest mandatory minimum sentencing statutes is appropriate....

In the past, the Sentencing Commission has taken the position that mandatory minimum sentencing statutes were not needed, in part because the sentencing guidelines were themselves mandatory.  This position was also put forward for many years by advocacy groups such as the American Bar Association and Families Against Mandatory Minimums as well as by federal public defenders. However, in our review of federal sentencing over the last year, we have found little support from these groups, in Congress, or the Federal Judiciary for reinstating the presumptive nature of the sentencing guidelines.  In the absence of such a change to the federal sentencing structure that might return presumptive sentencing guidelines (an overhaul that we are not now recommending), we believe that mandatory minimum sentencing statutes must go hand in hand with advisory sentencing guidelines.

May 27, 2010 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Monday, May 24, 2010

SCOTUS in O'Brien preserves (for now) McMillan precedent (to Justice Stevens' chagrin)

Based on a quick review of all of today's SCOTUS action, the biggest news for hard-core sentencing fans seems to be the continued preservation of the McMillan/Harris mandatory minimum "exception" to Apprendi/Blakely Sixth Amendment rule by virtue of the Supreme Court's decision to decide the O'Brien case for the defendants on statutory grounds.  Justice Stevens, in what may serve as his last word on the Apprendi/Blakely Sixth Amendment jurisprudence make this final statement at the end of his notable separate (and solo) concurrence:

In my view, the simplest, and most correct, solution to the case before us would be to recognize that any fact mandating the imposition of a sentence more severe than a judge would otherwise have discretion to impose should be treated as an element of the offense. The unanimity of our decision today does not imply that McMillan is safe from a direct challenge to its foundation.

But the fact that nobody signed on to retiring Justice Stevens' separate opinion in the O'Brien case may, in fact,  imply that McMillan is going to remain safeguarded from a direct challenge to its foundation for perhaps a long time.

May 24, 2010 in Blakely Commentary and News, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, May 19, 2010

US Sentencing Commission announces big public hearing on mandatory minimums

As detailed via this little notice, the United States Sentencing Commission has scheduled a public hearing for all day next Thursday at the Thurgood Marshall Federal Judiciary Building in Washington, D.C. As the notice explains, the "purpose of the public hearing is for the Commission to gather testimony from invited witnesses regarding the issue of statutory mandatory minimum penalties in federal sentencing."  The list of invited witnesses scheduled to testify next week at the USSC can be found here, though who will testify on behalf of the United States Department of Justice is not indicated (and may not yet be known).

I suspect all the testimony at this hearing will be interesting, even though the positions likely to be taken by certain witnesses are obvious.  (For example, I fully expect that Julie Stewart, the President of Families Against Mandatory Minimums, will be testifying against the use of statutory mandatory minimum penalties in federal sentencing.)   But, except for coming out against crack/powder sentencing disparity, the Obama Justice Department has not yet had too much to say about mandatory minimums.  It will not be able to dodge taking at least some positions in this USSC hearing, and so everyone should stay tuned. 

This official press release from the USSC provides more backgrounds on this hearing and provides this explanation of how Congress has made it happen:

In October 2010 [sic; should be 2009], Congress directed the Commission to undertake a comprehensive review of these penalties as part of the Matthew Shepard and James Byrd Hate Crimes Prevention Act (Sec. 4713 of Pub. L. No. 111—84)....  [A] report is due to Congress no later than October 28, 2010.

Congress provided a detailed list of topics it expects the Commission to cover in its report, including –

  • assessing the effects of mandatory minimum sentencing on the goal of eliminating unwarranted sentencing disparity, the other goals of sentencing, and the federal prison population;
  • assessing the compatibility of mandatory minimum sentencing laws and the current federal guidelines system;
  • describing the interaction between mandatory minimum sentencing and plea agreements; and
  • discussing means other than mandatory minimums by which Congress can act in regard to sentencing policy.
The Commission expects that these topics, as well as other issues associated with federal statutory mandatory minimum penalties and the federal sentencing system, will be addressed during the hearing.

May 19, 2010 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Tuesday, April 27, 2010

"FAMM Condemns Mandatory Life Sentence for NV Woman"

The title of this post is the heading of this new press release from the folks at Families Against Mandatory Minimums in response the the remarkable Nevada sentencing story discussed in this prior post.  Here is an excerpt from the press release:

According to published news reports, a jury convicted Ms. Taylor, 34, of lewdness with a minor under 14 for forcing a 13-year-old boy to touch her breast through her clothing and soliciting him for sex.  Conviction for lewdness with a minor under 14 carries a mandatory life sentence in Nevada with parole eligibility after 10 years.

"Based on what we've learned so far, we believe the life sentence handed to Ms. Taylor is a total travesty of justice," said Julie Stewart, FAMM founder and president.  "FAMM does not condone criminal behavior, especially where a minor is the victim, but no reasonable person can believe that the punishment fits the crime in this case.  Life sentences are usually reserved for murderers and repeat violent offenders."

"FAMM opposes mandatory minimum sentencing laws that carry disproportionate one-size-fits-all sentences and enormously expensive penalties.  Keeping Ms. Taylor in jail for the rest of her life could cost Nevada taxpayers well over $1 million.  This seems like a terrible waste of a life, and limited taxpayer resources," concluded Stewart.

April 27, 2010 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Monday, April 26, 2010

House bill to create "National Criminal Justice Commission" to be rolled out tomorrow

This new press release from the office of Representative Bill Delahunt (D-MA) reports on a notable legislative development to be formally annouced at a press conference tomorrow. Here are the details:

U.S. Reps Bill Delahunt (D-MA), Darrell Issa (R-CA), Marcia Fudge (D-OH), and Tom Rooney (R-FL) will hold a press conference on Tuesday April 27, 2010 at 11:30AM in Room 2255 of the Rayburn House Office Building to announce the introduction of the National Criminal Justice Commission Act of 2010.

The National Criminal Justice Commission Act of 2010, was introduced in the Senate as S. 714 by Senators Jim Webb. The bill has received widespread bipartisan support and has 37 cosponsors in the Senate, including Chairman of the Senate Judiciary Committee Senator Patrick Leahy (D-VT), Chairman of the Subcommittee on Crime and Drugs Senator Arlen Specter (D-PA) and Ranking Member Senator Lindsey Graham (R-SC), and Judiciary Committee member Senator Orrin G Hatch (R-U).

It will create a blue-ribbon bipartisan commission charged with undertaking an 18-month comprehensive review of the Nation’s criminal justice system.  The Commission will study all areas of the criminal justice system, including federal, state, local and tribal governments’ criminal justice costs, practices, and policies.  After conducting the review, the Commission will make recommendations for changes in, or continuation of oversight, policies, practices, and laws designed to prevent, deter, and reduce crime and violence, improve cost-effectiveness, and ensure the interests of justice.  The bill has been endorsed by approximately 100 organizations.

A copy of the bill will be available at the press conference.

I think much good could come from having a new "blue-ribbon bipartisan commission charged with undertaking an 18-month comprehensive review of the Nation’s criminal justice system," especially if this National Criminal Justice Commission is effectively staffed and funded.  But I am fearful that the creation of a new study commission, who won't issue recommendations until probably 2012 or beyond, could become a distraction from the critical important federal criminal justice reform work that could and should be getting done right now.

Indeed, this very press release has me wondering (again!) about the status of crack/powder sentencing reform in the House.  It has now been more six weeks since the full US Senate unanimously approved legislation to reduce (but not eliminate) the notorious 100:1 ratio in the amount of powder cocaine versus crack cocaine that trigger statutory mandatory minimum sentences.  I had heard rumors that similar compromise legislation might get through the House in April, but these rumors now seem unlikely to become a reality. 

In light of this background, I am not especially excited by House members getting all excited about the introduction of the National Criminal Justice Commission Act of 2010.  I do not think this development is itself a reason for criticism, but it does remind me of how important it is for those interested in serious criminal justice reform to keep their eyes on the prize.

Some related recent and older posts:

April 26, 2010 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New USSC crack guidelines and report, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack