Monday, November 05, 2012

Examining how Pennsylvania has responded legislatively to Miller

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

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

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

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

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

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

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

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

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

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

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

Wednesday, October 31, 2012

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

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

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

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

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

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

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

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

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

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

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

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

October 31, 2012 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (35) | TrackBack

Tuesday, October 30, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, October 26, 2012

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

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

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

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

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

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

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

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

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

Wednesday, October 03, 2012

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

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

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

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

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

Friday, September 28, 2012

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

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

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

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

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

Thursday, September 13, 2012

Latest California poll data showing DP repeal losing so far, while three-strike reform is winning big

Crime & Consequences has lots of good coverage here and here of the latest poll numbers from California concerning the initiative going before the voters to repeal the death penalty in the state.  Short story is that the polling numbers suggests those favoring abolition have a up hill battle over the next two months to convince voters to vote for repeal.

Not reported by C&C, but via the data linked in this report, are the remarkable poll numbers showing overwhelming support for reforming California's severe Three-Strikes mandatory sentencing law (this is Proposition 36). According to the data, there is more than 80% support for three-strikes reform, and of those who indicate a strong or somewhat solid opinion, more than 50% support reform and less than 10% are against reform. 

September 13, 2012 in Death Penalty Reforms, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

Monday, August 27, 2012

Second Circuit limits predicates triggerring 15-year child porn mandatory minimums

The Second Circuit has released today a lengthy and significant ruling concerning the application of mandatory minimum terms for those convicted of child pornography offenses. The panel opinion in US v. Beardsley, No. 11-2206 (2d Cir. Aug. 27, 2012) (available here) begins this way:

Defendant-appellant Wayne Beardsley appeals from a judgment of conviction entered in the Northern District of New York (Glenn T. Suddaby, Judge) following his plea of guilty to knowingly receiving and possessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(a)(5)(B).  The district court sentenced Beardsley to fifteen years in prison, the mandatory minimum sentence established by 18 U.S.C. § 2252A(b)(1), which applies to defendants convicted of certain federal child pornography offenses who have a prior conviction “under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”  On appeal, Beardsley argues that the district court erred in employing the “modified categorical approach” to analyze the facts underlying his prior state conviction for endangering the welfare of a child, and that under the proper standard -- the “categorical approach” -- his prior state conviction does not qualify as a § 2252A(b)(1) predicate offense.  We agree, and therefore vacate his sentence and remand to the district court for resentencing.

August 27, 2012 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Wednesday, August 22, 2012

Effective review of three-strikes initiative battle taking place in California

The Sacramento Bee has this lengthy new article providing an effective overview of the 2012 election season debate over an effort to reform California's three strikes law. The piece is headlined "'Three-strikes' battle returns to fall ballot in California," and here are excerpts:

Proposition 36 gives the state's electorate another opportunity to weigh in on California's 18-year-old "three-strikes" law, the toughest career-criminal sentencing statute in the nation.  Twice in as many decades, voters have sided in favor of a three-strikes law that allows judges to impose a life prison term for offenders who commit a third felony -- no matter how minor -- if they have two previous serious or violent criminal convictions on their records.

Proposition 36 proponents want to change the law to restrict the 25-years-to-life sentences, with some exceptions, to criminals whose third felony was serious or violent; nothing less than a residential burglary would qualify as a strike.

The measure would enable an estimated 3,000 of the 8,873 prisoners serving 25-years-to-life terms in the state as of June 30 to apply for resentencing hearings.  If their motions for new terms are granted, a good number of those 3,000 prisoners could go free.  The Legislative Analyst's Office estimates passage of Proposition 36 could save the state anywhere from $70 million to $90 million a year in reduced prison costs.

The initiative has had huge cash infusions from two sources.  Billionaire financier George Soros, the international hedge fund manager who has contributed millions over the years to change drug laws and other statutes he believes are too harsh, kicked in $500,000, according to the secretary of state's records. David W. Mills, a Stanford law professor and private investment manager, matched and raised the contribution.  Mills, a co-chair of the NAACP's Legal Defense Fund, put in $878,000.  The money Soros and Mills contributed paid for the $1.4 million signature-gathering effort that qualified Proposition 36 for the Nov. 6 ballot.

In an interview, Mills, 65, said his involvement in California's three-strikes law stems from his long-term interest in civil rights.  It is Mills' view that the sentencing measure's "dramatic effect on poor people and African Americans" makes it one of the leading civil rights issues of the day. "The notion I can live in a state in a country where we would send somebody to jail for 25-to-life for stealing a loaf of bread, a pair of gloves, a piece of pizza, for a gram of cocaine, or whatever, to me is incomprehensible," he said.

Opponents of the measure include the California Police Chiefs Association.  Sacramento Police Chief Rick Braziel signed the ballot rebuttal argument against Proposition 36 in his capacity as president of the California Peace Officers Association, arguing that thousands of criminals would be released from prison.  Top victims' rights organizations, such as Crime Victims United of California, also have lined up to fight the measure....

Mike Reynolds, the Fresno photographer whose daughter was murdered by a repeat offender, has served as guardian of the three-strikes law since its 1994 birth.  In an interview, Reynolds noted steep declines in the California crime rate in the 18 years that the law has been in effect.  He wonders why anyone would want to change it, and is angry at the thought of 3,000 career criminals getting out of prison.

"One hundred percent of them would have at least two prior serious or violent convictions," Reynolds said.  "Make no mistake.  We're talking about the bad boys.  These are the guys who are responsible for the worst of our crimes, the most active by definition.  And you want to put them back on the streets and not expect them to come back with new convictions?"

Another Proposition 36 opponent, Sacramento County District Attorney Jan Scully, sneers at the suggestion that the three-strikes change would save taxpayers' money by releasing people from prison.  "This assumes they're not going to commit any more crimes," Scully said. "Trust me, they are.  Then we'll have to prosecute them again, so they'll be taking up just as many resources as before, except they'll have new victims in their path."

August 22, 2012 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Friday, August 03, 2012

En banc DC Circuit splits over mens rea required for 30-year gun mandatory minimum

The Blog of Legal Times has this new post about this notable en banc ruling handed down by the DC Circuit. Because all the opinions in the ruling run over 100 pages, I will rely here on The BLT's post provide a summary of the two leading opinions:

Bryan Burwell maintains he didn't know the gun he was holding during a bank robbery was capable of automatic fire. The gun, an AK-47, cost him an extra 30 years in prison.

A divided federal appeals court in Washington ruled today that prosecutors were not required to prove at trial that Burwell knew the firearm was a machine gun.  The U.S. Court of Appeals for the D.C. Circuit, sitting in a rare session as a full court, upheld the 30-year mandatory prison term for possession of a machine gun.  The court ruled 5 to 3 in favor of the U.S. Justice Department.

Judge Janice Rogers Brown, writing for the majority, said there's nothing unfair in the statute. Burwell, the court said, knew he was committing a violent crime when he robbed two banks.  It's not unusual, Brown wrote, to punish defendants for unintended consequences of unlawful acts.  "The higher penalties attached to the use of the most dangerous kinds of firearms reflect Congress's desire to create a deterrent commensurate with the increased danger posed by these weapons," Brown said.

A jury in Washington's federal trial court convicted Burwell in 2005 for his role in a robbery conspiracy that Brown said employed "old school tactics," including pistol-whipping and subduing bystanders.  Burwell was sentenced to about 11 years for the robbery scheme. On top of that, the trial judge tacked on an additional 30 years for possession of a machine gun.

The National Association of Criminal Defense Lawyers and the Federal Public Defender's Office supported Burwell in the appeal, saying that prosecutors should have been required to prove Burwell's knowledge that he was brandishing a machine gun during a robbery spree in Washington in 2004....

Writing in dissent, Judge Brett Kavanaugh posed a hypothetical situation in which, under the majority decision, an altar boy can be found guilty both of theft and drug possession for stealing a collection plate that held cash and a bag of cocaine sewn into the lining. "The presumption of mens rea embodies deeply rooted principles of law and justice that the Supreme Court has emphasized time and again," Kavanaugh wrote in the dissent, joined by Judge David Tatel.  "The presumption of mens rea is no mere technicality, but rather implicates 'fundamental and far-reaching' issues, as this case well illustrates."

Kavanaugh wrote in his 51-page dissent — nearly twice as long as the majority opinion — that "the debate over mens rea is not some philosophical or academic exercise.  It has major real-world consequences for criminal defendants.  And it takes on added significance in an era of often lengthy mandatory minimum sentences."

August 3, 2012 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Tuesday, July 31, 2012

Eleventh Circuit clarifies which defendants can benefit from new crack guidelines

The Eleventh Circuit issued a little, but still important, sentencing opinion in US v. Liberse, No. 12-10243 (11th Cir. July 30, 2012) (available here) to clarify just which defendants can now benefit from the new reduced crack guidelines. Here is how the opinion starts:

This is the third decision we have issued in the past month concerning the application of Amendments 750 and 759 to the sentencing guidelines and the scope of a district court’s authority to reduce a defendant’s sentence under 18 U.S.C. § 3582(c)(2).  In the first two decisions, we held that those amendments did not authorize a court to reduce a sentence under § 3582(c)(2) if the defendant’s guidelines range remained the statutory mandatory minimum after the amendments or if the guidelines range was otherwise not affected by the amendments.  See United States v. Glover, — F.3d —, No. 12-10580, 2012 WL 2814303, at *3–4 (11th Cir. July 11, 2012) (statutory mandatory minimum); United States v. Lawson, — F.3d —, No. 11-15912, 2012 WL 2866265, at *2–3 (11th Cir. July 13, 2012) (otherwise unchanged guidelines range).  Our decisions in Glover and Lawson establish that “a court cannot use an amendment to reduce a sentence in a particular case unless that amendment actually lowers the guidelines range in that case.” Glover, 2012 WL 2814303, at *3.

This appeal raises a different issue because the pro se appellant’s original guidelines range of 121 to 151 months was above, and thus not affected by, the applicable statutory mandatory minimum of 120 months.  As a result, Amendments 750 and 759 would reduce his guidelines range.  For those reasons, § 3582(c)(2) gives the district court authority to reduce the sentence in its discretion.  Because the court believed it lacked that authority, we vacate its order denying the motion for resentencing and remand for the court to determine whether to exercise its discretion to reduce the sentence.

July 31, 2012 in Mandatory minimum sentencing statutes, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Friday, July 27, 2012

Fascinating deal cut in federal habeas action brought by California pot dispensary owner

A helpful reader alerted me to this Sacramento Bee story from earlier this week, headlined "Plea cuts prison term for medical pot seller Bryan Epis," which reports on a remarkable resolution to a remarkable federal criminal justice matter in California. Here are the highlights:

Bryan James Epis, the first person associated with a California cannabis dispensary to duke it out at trial with federal prosecutors over medical marijuana, has had 2 1/2 years whacked off his mandatory 10-year prison term.

Epis, who has been locked in a pitched battle with law enforcement over his cultivation and use of marijuana for almost 20 years, is an inmate at the Terminal Island Federal Correctional Institution in Southern California.  He now should be released in early 2014 instead of September 2016, and will be supervised by probation officers for 10 more years.

The 45-year-old Epis established a cannabis club in Chico, one of the first in the state after passage in 1996 of a California ballot initiative permitting medicinal use of marijuana with a doctor's recommendation.  At the conclusion of a highly publicized trial a decade ago in Sacramento federal court, he was found guilty of conspiring to produce 1,000 or more plants at his home within 1,000 feet of Chico High School.  The crime carries a mandatory minimum 10 years behind bars.  He was free for much of the intervening time pending efforts to overturn the conviction.

The rare agreement, which was approved Tuesday by U.S. District Judge Garland E. Burrell Jr., is surprising on multiple levels:

• Federal prosecutors signed off on it, yet they have zero tolerance for defendants who do what they say Epis did -- grow pot out of a greedy hunger for huge profits.

• The government had argued for years that Epis deserved no reduction because he was less than forthcoming at a debriefing by prosecutors and agents.

• The original sentence is statutorily mandated and had been upheld on appeal.

• The trial prosecutor, Samuel Wong, is known as one of the toughest in the business on pot growers, yet he agreed to the reduction....

A common thread that has run throughout the case, starting with the trial, is Epis' claim that Wong relied heavily on false and misleading evidence, and arguments regarding a spreadsheet seized during a search of his home that the prosecutor knew had nothing to do with the charges in the indictment.  Wong heatedly denies the accusation, arguing an appeals panel rejected the claim.

In April, Hollows scheduled an evidentiary hearing on the issue for June 13. At a pre-hearing conference on June 4, Epis attorney John Balazs and Wong informed Hollows they had reached an agreement....

U.S. Attorney Benjamin Wagner said Tuesday a recent U.S. Supreme Court opinion may have made Epis' challenge more viable.   "As set forth in the settlement agreement, Bryan Epis claimed that his trial attorneys rendered ineffective assistance to him with respect to their advice concerning the United States' pretrial plea offer," Wagner said in a prepared statement. "As also detailed in the agreement, his trial attorneys did not refute that claim, and under recent Supreme Court precedent, Epis therefore might have been entitled to some relief."...

Epis, who has a law degree, said Monday that, "given the risks involved in further litigation and the low track record of success in habeas cases in general, I accepted the government's offer despite all its conditions."

One of the conditions Wong insisted on was that Epis give up his constitutional right to speak out in favor of medical marijuana and across-the-board legalization through the end of his supervised release. Epis stands as a symbol among marijuana advocates of the sacrifices they feel have been made in the face of an intractable federal stance on the drug.

"Although we had strong claims, I understand and concur in Bryan's decision to accept the government's offer … in order to get back to his family as soon as possible," Balazs said Monday.  "At the same time, it seems un-American for the government to insist … that Bryan give up his First Amendment right to advocate for the reform of our country's marijuana laws."

The helpful reader who alerted me to this story was Epis attorney John Balazs, who has also told me that Bryan Epis has given him permission to share info and comments about his case and that he may provide some additional "blog copy" about this fascinating case in the near future.

July 27, 2012 in Mandatory minimum sentencing statutes, Pot Prohibition Issues, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack

Wednesday, July 25, 2012

Massachusetts Gov asked to sign mixed sentencing reform bill

As reported in this local article, headlined "While called ‘balanced,’ sentencing bill lacks provisions sought by Gov. Patrick," the governor of Massachusetts now has on his desk a dynamic state sentencing reform bill.   Here are the details:

Advocates on all sides of the crime and sentencing debate continue to speak out about the habitual offender and sentencing reform bill on Gov. Deval Patrick’s desk, urging him to sign it, veto it or send it back to the Legislature with amendments.

In a WBZ-AM radio interview Monday night, Les Gosule, an activist who has pressed for a habitual offender law for about a decade following the rape and murder of his daughter Melissa, said parties disgruntled over issues left unaddressed by the legislation can pursue those initiatives anew in the next session beginning in January.  “I want the pen,” Gosule said, urging Patrick to put his signature on the bill.

Patrick has until Sunday to act on the legislation and proponents and opponents of the bill are mindful that formal legislative sessions end for the year at midnight next Tuesday. Patrick can sign the bill, veto it, or send it back with amendments.  An eleventh hour amendment from Patrick would force lawmakers to either deal immediately with the amendment or risk seeing their work on the bill go for naught....

While the bill last week cleared the House 139-14 and the Senate 31-7, its supporters and opponents since then have raised concerns about it, with some arguing it lacks crime-fighting tools sought by law enforcement and others arguing that it takes discretionary power in sentencing away from judges and would lead to prison overcrowding.

Among other provisions, the bill reduces mandatory minimum sentences for non-violent drug offenders and eliminates parole eligibility for certain violent offenders upon their third conviction.

While supporters say the bill represents the “balanced” approach Patrick called for, the legislation appears to lack key policies Patrick highlighted in his State of the State speech in January, giving extra weight to the idea that the bill might be returned with amendments....

The lack of judicial discretion in the bill’s habitual offender initiative drew criticism outside the capital Tuesday. “Who has discretionary power? The prosecutor,” said Rev. George Walters-Sleyon, who was joined by other Boston clergy and Boston City Councilor Charles Yancey in front of the Shaw Memorial on Boston Common Tuesday morning.  He said black people and Latinos comprise less than 17 percent of the state’s population but more than 55 percent of those serving time behind bars....

Criticism has also been levied from state prosecutors.  Six of the state’s 11 district attorneys signed onto a letter Friday criticizing the bill for leaving out provisions that would strengthen gun laws, and for including “no supervision” of drug traffickers released into the community.

July 25, 2012 in Mandatory minimum sentencing statutes, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, July 21, 2012

"The Mandatory Meaning of Miller"

The title of this post is the title of this new piece by Professor William W. Berry III. Here is the abstract:

In June 2012, the United States Supreme Court held in Miller v. Alabama that the Eighth Amendment’s ban on 'cruel and unusual' punishment prohibited the imposition of mandatory life-without-parole sentences on juveniles.  This case continued the Supreme Court’s slow but steady expansion of the scope of the Eighth Amendment over the past decade.

In light of the Court’s decision in Miller to preclude mandatory sentences of life without parole for juveniles, this article explores the possibility of further expansion of the Eighth Amendment to proscribe other kinds of mandatory sentences. Applying the approach of the Court in Woodson and Miller to other contexts provides, at the very least, a basis to remedy some of the injustices created by mandatory sentences.

This article, then, argues that the “mandatory” meaning of Miller is that the Eighth Amendment requires consideration of mitigating evidence by courts in all cases involving “death-in-custody” sentences. In light of this mandatory” meaning, the article then considers several important normative consequences.

Specifically, application of this 'mandatory' meaning would result in the Eighth Amendment barring imposition of a 'death-in-custody' sentence in capital cases where life with parole is not a sentencing option, cases involving a mandatory sentence of life without parole, and cases where the term of the sentence approaches the life expectancy of the offender. As explained below, the key principle here is that the Eighth Amendment requires courts to examine mitigating evidence in any case where the duration mandated legislative sentence exceeds the life expectancy of the offender.

Part I of this article explains the meaning of 'mandatory' as developed by Miller. In Part II, the article describes the normative consequences of adopting the 'mandatory' meaning of Miller -- when 'mandatory' matters -- in applying the Eighth Amendment to 'death-in-custody' cases. In Part III, the article then makes the case -- why 'mandatory' matters -- for adopting this approach in Eighth Amendment cases.

July 21, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Mandatory minimum sentencing statutes, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Saturday, July 07, 2012

Documenting the extremes of stacked federal gun mandatory sentences

This recent Reuters article, headlined "Florida man sees 'cruel' face of U.S. justice," details an extreme (but not all that uncommon) federal sentencing story resulting from stacked mandatory gun minimums. Here is how it starts:

Quartavious Davis is still shocked by what happened to him in federal court two months ago.  "My first offense, and they gave me all this time," said Davis, a pudgy African American with dreadlocks who spoke with Reuters at the Federal Detention Center in Miami.  "Might just as well say I'm dead."

Davis was convicted of participating in a string of armed robberies in the Miami area in 2010.  His accomplices testified against him, saying he carried a gun during their crimes and discharged it at a dog that chased them after one of their burglaries.  But Davis was not convicted of hurting anyone physically, including the dog.

Davis would occupy no place at all in the annals of crime if not for his sentence.  Now 20 years old, he was sentenced to 1,941 months -- almost 162 years -- in prison without the possibility of parole.

On the day of Davis's interview with Reuters, the U.S. Supreme Court decided that life sentences without parole for defendants under the age of 18 constituted "cruel and unusual punishment" even in cases of murder.  Unfortunately for Davis, he was 18 at the time of his crimes.

Nonetheless, Davis's attorney will argue that Davis's sentence to die in prison also constitutes "cruel and unusual punishment" on the grounds that Davis is a "first offender," having never before been charged with a crime.

"Just as the Supreme Court recently held that the Constitution bars taking away all discretion from judges in sentencing juveniles to life imprisonment for committing murder," said the attorney, Jacqueline Shapiro, "so also is it cruel and extreme to allow unfettered prosecutorial discretion to force a sentencing judge to impose a life sentence on a teenage first offender convicted of lesser charges."

Davis's unusually long sentence results from a controversial practice known as "stacking," in which each count of an indictment is counted as a separate crime, thus transforming a first-time defendant into a "habitual criminal" subject to multiple sentences and mandatory sentencing guidelines.

"Any law that provides for a mandatory term of imprisonment for a 19-year-old first offender that exceeds a century has got to be unconstitutional," said Michael Zelman, the court-appointed attorney who represented Davis at his trial.  Zelman resigned from Davis's case after filing a notice of appeal.  If Davis's new lawyer, Shapiro, has her way, the Supreme Court may ultimately decide the issue.  The case will be appealed first to the Eleventh Circuit Court of Appeals in Atlanta.

Until then, Davis's story will be a prominent case in point for both sides in an increasingly heated debate, pitting those who would protect society from the prospective dangers posed by serial criminals against those who see the United States -- whose overcrowded prisons house fully one-quarter of all the prisoners in the world, most of them black -- as a bastion of injustice.

July 7, 2012 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (38) | TrackBack

Wednesday, July 04, 2012

Judge down under laments mandatory 20 years (with parole) for brutal contract killer

The debates on this blog over the Supreme Court's recent work in Miller finding unconstitutional a mandatory LWOP sentence for a juvenile killer (see comments to posts here and here) have been robust and at times (over)heated.  With the Miller case and controversy fresh in mind, I found this new local story from Australia quite interesting and comparatively telling.  The story is headlined "Judge slams mandatory sentencing laws as 'unjust'," and here are excerpts:

A Supreme Court judge has criticised the Northern Territory sentencing regime as "unjust and unfair".  Justice Dean Mildren made the comment after sentencing Darren Jason Halfpenny to 20 years in jail for the contract killing of a man in Katherine.

Justice Mildren said he was required to impose a minimum 20 year prison term because of the mandatory sentencing regime in the Territory.   "It is unjust and unfair, and contrary to the public interest, that prisoners who plead guilty ... and are remorseful ... are left in a situation where their earlier release is left in the hands of the executive (government)," he said.

Russell Golflam of the Criminal Lawyers Association of the Northern Territory agrees. "Mandatory sentencing is, in principle, obnoxious," he said.  Mr Golflam says judges should be given the power to do the job that they're paid to do; impose appropriate penalties according to the circumstances of the case.  "Parliament and governments should not take that job away from judges," he said. He is calling for the Sentencing Act to be amended.

Justice Mildren recommended that Halfpenny be released on parole after 14 years because he will testify against his co-accused in the murder....

During the trial, the court heard Darren Halfpenny and two friends, Christopher Malyschko and Zac Grieve, donned shower caps and gloves before entering the Katherine house where Ray Niceforo lived.  The court was told Mr Niceforo, 41, was struck in the head with a blunt object seven times, then had a rope tied around his neck.

His body was wrapped in a tarpaulin and put into a van before being dumped in bushland. The body was found the following day and an autopsy found Mr Niceforo died from a blunt force head injury or asphyxiation.

Halfpenny was questioned by police a few days later and confessed.  He later agreed to testify against his co-accused, Malyschko and Grieve, who have been charged with murder.

The court was told the three men carried out the killing for a payment of $5,000 each. Crown prosecutor Jack Karzevski, QC, said the contract killing was commissioned by Bronwyn Buttery, the ex-partner of Mr Niceforo, who has also been charged with murder.

So, let's do a little compare/contrast concerning judicial sentencing attitudes in the land down under and in the land of the free: 

--- in Australia, a sentencing judge is bemoaning as "unjust and unfair" a legislative requirement to impose a 20-year prison term with parole on an adult who intentionally committed a brutal contract murder.  This kind of homicide in the US would clearly qualify as first-degree murder in just about every US state and in most would make the defendant eligible for the death penalty.  The defendant's decision to plead guilty and cooperate would likely prompt most US prosecutors to take the death penalty off the table but likely still would make a (perhaps mandatory) LWOP sentence still possible (even probably) for the premeditated and henious crime.

--- in the United States, four Justices of our Supreme Court in Miller have bemoaned the majority's ruling that the US Constitutional prohibits a legislative requirement to impos a life prison term without parole on a 14-year-old who unexpectedly had a role in the another's lethal shooting of a store clerk during an intentional robbery.  This kind of homicide in Australia, I suspect based on this somewhat dated report on homicide sentencing patterns, would likely result in the offender getting a prison sentence of just over 10 years with the possibility of parole a few years soon.

For a host of reasons, I am strongly disinclined to assert that Australia's sentencing approach to murder offenses is to preferred to the US system, and that kind of claim is not the point of this post.  Rather, my goal here is just to highlight (especially on July 4th, the day we most celebrate America as the land of the free and the home of the brave) the reality that a judge in Australia is quick to lament having to impose a 20-year prison term with parole on a brutal adult contract killer, while in Miller we see four Justices being quick to lament our Constitution being interpretted to giving a 14-year-old convicted of felony murder just the chance to seek a sentence less than life prison term without parole.

July 4, 2012 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentencing around the world, Who Sentences? | Permalink | Comments (25) | TrackBack

Tuesday, July 03, 2012

Los Angeles DA's long history with California three-strikes reform efforts

This great new piece at The Crime Report, which is headlined "Three Strikes: the California Challenge," details the unique role of the DA of Los Angeles in efforts to reform the state's broad three-strikes law. Here are excepts:

On June 20, The Three Strikes Reform Act officially qualified for the upcoming California ballot. Come November, voters will have the chance to amend the 1994 law that has condemned approximately 3,600 inmates to a 25-to-life sentence for nonviolent, non-serious crimes.

The law was intended to take serious repeat offenders who pick up a third felony charge off the streets for good — the idea being to protect the public from career super-criminals who would likely offend again if allowed to go free.

But more than a third of all Three Strikes lifers in the state system fit the definition of “non-violent” or “non-serious” — some of whom have infamously been put away for life for crimes as trivial as stealing a slice of pepperoni pizza.  California taxpayers spend more than $100 million annually to house these inmates. When the nonviolent lifers get older and start to need more medical care, the tab goes much higher.

The last time voters had the chance to vote to reform the law — the harshest 3-strikes statute in the nation — was in 2004 with Prop 66.  That initiative was on its way to sailing through the ballot process, until a last-minute offensive from Los Angeles District Attorney Steve Cooley, along with then-Governor Arnold Schwarzenegger and others, turned the tide against the initiative in the waning hours of the campaign.

Ironically, despite his role in the death of Prop 66, no California politician is more closely associated with Three Strikes reform than Steve Cooley.  Certainly no one in public office has a more complicated relationship with the statute.

In a conversation with WitnessLA, Cooley maintains that he won his first Los Angeles District Attorney race in 2000, largely thanks to his support of relaxed Three Strikes sentencing guidelines. “It was the defining issue in the race,” he says.

Within two weeks of taking office, Cooley stayed good to his campaign promise, crafting a policy that allowed his attorneys to use discretion in pursuing 25-to-life sentences for non-violent third strikers — the first DA in the state to do so. “It was a very modest reform,” he says. “It was not sweeping.”

According to Cooley, the two most important ethical considerations when it comes to sentencing are evenhanded application and proportionality. “Two-bit forgery and drug possession could be the predicate for 25 to life—the same sentence we often reserve for murderers,” he explains. “People will only respect the laws when they feel punishment is handed out fairly and proportionally. We’ve had a great deal of success with this policy in LA.”

But when Cooley had the chance to back sweeping statewide reform of Three Strikes in 2004 — via Prop 66 — he balked. In May of 2004, polls showed that voters favored Prop 66 by a margin of 76 percent to 14 percent. And then came the 11th hour Cooley, Schwarzenegger and company scare campaign.  Practically overnight, the polls did a 180. Prop 66 went down in flames, by a 53-47 percent margin.

“I don’t think Cooley being against the bill was a deciding factor,” says journalist and author Joe Domanick, whose book Cruel Justice is considered the authoritative work on the history of Three Strikes laws in California.  “The entire law enforcement establishment was against the bill.”...

Cooley is unapologetic about the role he may have played in Prop 66’s demise. “From a public safety standpoint, 66 was scary,” he says. “Once I crunched the numbers and saw how many people would be released and how quickly, I was strongly, openly, publicly against it. In Los Angeles County alone, 12,000-14,000 would have been released within a year.”...

Two years after Prop 66’s demise, the Republican DA teamed with Democrat State Senator Gloria Romero to craft a more modest Three Strikes reform measure — S.B. 1642 — based on the relaxed Three Strikes guidelines he’d developed in the LA DA’s office. “Three Strikes is a powerful tool for prosecutors if used properly,” Cooley explains.  “Prop 66 was a wake-up call: ‘OK, these folks have some arguments that appeal to the public.  Let’s take those arguments away.’ In order to avoid a future Prop 66, we had to make people feel good about how Three Strikes was being applied.”

S.B. 1642, however, died in committee. “The only reason it failed is because five Democrats didn’t vote for it,” Cooley says. “They made a political decision based on their own political careers. It absolutely would have passed otherwise.

The bill’s defeat marked the end of Cooley’s public activism on the issue of Three Strikes. But his positions have followed him throughout his political career....  “During the Attorney General race, both of my Republican opponents made my Three Strikes views an issue. I won the primary by a landslide. My adversary tried the same tact in 2000 and I won by something like 28 points.”

Although an ameliorating law has yet to make it to the books, Three Strikes reform is exceedingly popular in California. A June 2011 Field Poll revealed that nearly 75 percent of California voters favor reform. Field director Mark DiCamillo says his organization won’t take a poll on the initiative itself until the Secretary of State certifies the ballot language sometime next month....

When WitnessLA spoke to him last week, [Cooley] played coy about his support for the current initiative. “I have not taken an official public position yet,” he says. “I do like the concept. I’ve read a number of analyses [of the proposed measure] but I need time to study. I plan on taking a public position soon.”

Cooley readily concedes that the current initiative is based on the policies he implemented in Los Angeles in 2000. He also admits that some of his main deputies were an active part of the conversation when the initiative was being drafted. “People in my office were involved,” he says. “I think this particular product is better than what was proposed in 2006. It’s workable. And I think it will prevent Three Strikes from being attacked by another 66-type effort.

July 3, 2012 in Mandatory minimum sentencing statutes, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Saturday, June 30, 2012

Criticism of Justice Alito's one-size-fits-all dissent in Miller

As regular readers know and as previously explained here, in a series of posts I am taking on a claim at the heart of each dissenting opinion to the Supreme Court's new Eighth Amendment SCOTUS Miller ruling (opinion here, basics here).  In the first post here, I questioned number-crunching in the Roberts/textualism dissent.  In this second post here, I questioned claims about LWOP as a method of punishment in the Thomas/originalism dissent. 

Coming soon will be my final post in ths series in which I examine a key claim in Justice Alito's dissent.  But, before I that post is finished, I see that Wendy Kaminar has this potent criticism in The Atlantic of Justice Alito's work in Miller which carries this sub-headlined: "Conservatives are supposed to embrace individualism. So why did the Court's conservative wing defend a one-size-fits-all approach to juvenile justice?"  Here are snippets from the piece:

Individualized justice is supposed to be a conservative ideal. Liberals are supposed to embrace collectivism, while conservatives promote individualism and oppose regulatory schemes, like affirmative action, which treat people categorically as fungible members of groups. A collective or categorical approach to law is, from this perspective, an assault on liberty and the integrity of the individual -- except when it's not....

Justice Alito objected strongly to this individualized approach to sentencing. The "category of murderers" under 18 consists mostly of older teenagers who engage in "brutal thrill-killing," Alito declared in dissent. The offenders in the cases before the Court in Miller were "very young"; they were "anamolies," for whom it was "hard not to feel sympathy," he acknowledged. But if some members of the juvenile murderer category are atypical and inappropriate candidates for LWOP, that, Alito suggested, is their misfortune. In his view, 8th Amendment strictures against cruel and unusual punishment do not bar states from imposing excessively harsh sentences on a few juveniles who may not deserve them in order to facilitate their imposition on many teenagers who do.

"No one should be confused by the particulars of the two cases before us," Alito admonished, in a remarkable rejection of individualized justice when it arguably matters most, in the imposition of criminal sentences. Should Alito ever be arrested, I imagine he'll expect and demand to be treated as an individual -- not as a Catholic, or an Italian-American of a certain age, or a member of a conservative Supreme Court bloc, who might be sentenced for the sins of Justice Scalia (whatever they may be). I suspect he'll want to be treated as Samuel Alito, a particular person alleged to have committed a particular crime. Should he ever be arrested, Justice Alito will probably want police, prosecutors, jurors and judges to pay close attention to his particulars, which I doubt he'll condemn as "confusing."

Particularized, individualized justice is precisely what mandatory sentences deny. The Court has declined to strike them down under the 8th Amendment in cases involving adults, although they often dictate excessively, disproportionately harsh sentences, and their role in filling our prisons with non-violent drug offenders is a decades old scandal. Long promoted as a means of eliminated discretion in sentencing, mandatory minimums merely transfer discretion from judges to prosecutors. They ensure that prosecutors decide how defendants will be sentenced when they choose the crimes with which defendants will be charged.  In juvenile cases, prosecutors may sometimes choose lengthy, mandatory sentences when they choose to transfer juveniles to adult court.

Now, under Miller, prosecutors may still transfer juvenile homicide suspects, who may still face LWOP for "brutal thrill-killings."  But their sentences will no longer be determined by generally unaccountable prosecutors or by the crimes of other juveniles in their "category." This is not an obscure principle, difficult to comprehend.  Juvenile offenders are individuals too, not interchangeable members of a class.

Amen!

Some related Miller posts:

June 30, 2012 in Assessing Miller and its aftermath, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, June 28, 2012

What is the real national sentencing "mood" in our new era of budget-cut reforms?

The question in the title of this post is prompted in part by what seems to be a somewhat muted political reaction to the Supreme Court's Eighth Amendment decision in Miller, and in part by this effective new article at The Crime Report.  The piece is headlined "Rethinking ‘Tough on Crime’," and it has a particular focus on this November's ballot initiative in California to reform that state's broad three-strikes law.  Here are excerpts:

[S]everal thousand prisoners ... could be eligible to petition for early release if California voters this November pass a proposed initiative to reform the state’s three-strikes law, the toughest in the country.  The proposed law would reserve 25-to-life sentences mostly to those who commit serious or violent crimes on their third offense.  It would also allow some current inmates, who committed a third strike that was not violent or serious, to petition for early release.

California is not alone.  States across the country are revisiting three-strikes laws and other tough mandatory minimum sentencing laws, particularly for low-level drug crimes.  Of the 24 states that passed three-strikes laws in the early 1990s, at least 16 have since modified them to give judges more discretion in sentencing or narrow the types of crimes that count as a “strike,” according to the National Conference of State Legislatures (NCSL).  At least 14 states in recent years also either eliminated mandatory minimum sentencing for low-level drug offenders, or gave judges more discretion to consider alternatives to incarceration, according to the NCSL.

The U.S. Sentencing Commission in October 2011 also recommended changes to federal mandatory minimum sentencing laws, saying that some penalties “apply too broadly, are set too high,” and are applied inconsistently across the country.

“Compared to the ‘80s and ‘90s when the push was to adopt more mandatory sentencing policies, the tide is beginning to move in the other direction,” said Marc Mauer, the director of The Sentencing Project.  “We’re seeing a better climate for sentencing and corrections reform.”

The changes are part of a broader rethinking of many of the “tough on crime” sentencing policies that dominated the country for decades.  Driven largely by the flagging economy, states have embraced a variety of reforms to rein in the cost of high prison populations, including diverting low-level drug offenders into treatment; reforming the parole system; and granting early release to certain inmates....

Though criminal justice reform was once thought of as a purely liberal issue, many of the most dramatic changes have come in traditionally conservative states, such as Texas, South Carolina, and Georgia, which have passed comprehensive reform packages.

Louisiana, which has the highest incarceration rate in the country, recently gave prosecutors and judges sentencing discretion for some crimes that normally carry mandatory minimum penalties and will allow early release for some non-violent offenders sentenced to life without parole.  Prominent conservatives, such as former House Speaker Newt Gingrich and former Attorney General Edwin Meese, have also spoken out in favor of reform, including eliminating mandatory minimum sentences for non-violent offenses.

Rather than a wholesale rejection of long prison terms, though, many of the mandatory minimum and repeat offender sentencing changes are refining laws to reserve the harshest punishment for violent or repeat criminals....

Not every state is moving towards sentencing reform.  In Florida, which has a three-strikes law and a mandatory sentencing scheme for gun crimes, Gov. Rick Scott earlier this year vetoed a bill that would have diverted some nonviolent drug offenders into treatment.  The legislature in Massachusetts is also considering enacting a new three-strikes law.

And, other than reevaluating mandatory sentences for drug crimes, most states still favor long prison terms, said Barry Krisberg, Director of Research and Policy at the Chief Justice Earl Warren Institute on Law and Social Policy at the University of California, Berkeley School of Law. “No one wants to fundamentally change sentencing laws, so we’re not,” he said. “We’re just working around them.”

June 28, 2012 in Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, June 27, 2012

"Cracking the Disparities: The Ongoing Battle for Fairness in Crack Sentencing"

The title of this post is the headline of this effective new commentary by Nkechi Taifa at the Huffington Post. The piece highlights that the passage of the FSA and the subsequent ruling for defendants in Dorsey hardly makes all well in the federal sentencing world, and it urges President Obama to get in the game.  Here are excerpts:

Last week's Supreme Court ruling in Dorsey v. United States represents another victory in the ongoing battle for fairness in cocaine sentencing. The Court correctly ruled that the 2010 Fair Sentencing Act (FSA), which increased fairness in cocaine penalties, was not limited to newly committed crimes but applied also to offenses committed prior to passage of the Act where the defendant had not yet been sentenced....

The ruling comes in the wake of advances that have successfully chipped away disparities between crack and powder cocaine sentencing.  First, Congress passed the FSA, reducing the egregious 100-to-1 sentencing ratio to a more reasonable, albeit still insufficient, 18-to-1.  Second, the U.S. Sentencing Commission amended its guideline ranges to be consistent with the new Act.  Third, the Commission unanimously agreed to make these changes retroactive....

None of these necessary improvements, however, benefit those whose offenses and harsh, discriminatory mandatory minimum sentences occurred prior to the Fair Sentencing Act's passage. Ironically, these are the very cases that originally inspired reform.

The process for relief for this remaining category of cases can be swiftly initiated with the stroke of the executive pen, moving the nation closer to concluding a shameful chapter in the chronicles of federal drug sentencing policy.  There is wide support for fairness and consistency in cocaine sentencing, and utilizing presidential clemency power is the most practical option to ensure immediate reform.  Commutation of the sentences of the identifiable class of people currently incarcerated for crack cocaine offenses under the old sentencing regime -- that all three branches of government agree is unjust, inconsistent, unfair, and biased -- is timely and can be readily accomplished.

Professor Mark Osler and former prosecutor Matthew Fass in a recent article [here from the Federal Sentencing Reporter], highlighted Gerald Ford's 1974 strategic use of the presidential pardon power to impanel an ad hoc executive clemency board to oversee the petitions of 21,000 people convicted of draft-related offenses during the Vietnam War. Within a year, President Ford granted 90 percent of the petitions.  On balance, the approach by Ford to establish a pardon board allowed for individualized review of each clemency application, with options including approval, community service, or denial....

Similarly, adoption of an individualized review process for pre-FSA cases would not be burdensome or a "get out of jail free card."  Cases could simply be recalculated according to the new 18-to-1 ratio, under already existing parameters established by the Sentencing Commission that result in gradual releases in appropriate cases over the course of several decades.  The president would be free to use his constitutional pardon power unrestricted by the 18-to-1 ratio should he so choose.

Moreover, the creation of a transparent process by which to review and remedy these discredited sentences would correct an injustice that has resulted in egregiously severe and racially discriminatory sentences for a quarter of a century.  And establishment of a clemency board independent of the Office of the Pardon Attorney and the Department of Justice could shield the review process from scandals of past administrations and current allegations of discriminatory treatment of clemency applications unveiled by the investigative journalism website Pro Publica....

Despite improvements by Congress, the Sentencing Commission, the Department of Justice and the Supreme Court, the fight for fairness and justice in crack cocaine sentencing is not over.  The president could bring closure to this injustice through his constitutional executive power of clemency, creating a review board to reevaluate old crack cocaine sentences so they are consistent with the new law.

Regular readers should not be surprised to hear that I think this is a great idea, nor should they be surprised to see this great idea get completely ignored by the powers-that-be in the White House (at least until after this November's election).

June 27, 2012 in Clemency and Pardons, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, June 04, 2012

Another week of SCOTUS waiting for sentencing fans

I had thought there was a reasonable possibility that the Supreme Court sometime this week might hand down one of the big sentencing cases still pending: Southern Union (Apprendi's application to fines); Jackson and Miller (mandatory LWOP for young juve murderers); Dorsey and Hill (the FSA's application to pipeline cases).  But, as detailed via this post at How Appealing, the Justices did not issue opinions in any of these cases this morning.  They Justices did grant cert and hand down one opinion on police practice issues, and Lyle Denniston reports here at SCOTUSblog that probably the most notable criminal justice decision was a cert denied in two high-profile federal convictions flowing from campaign donations in Alabama. 

According to the folks at SCOTUSblog, it appear that the Court will not hand down opinions again until next Monday.  So, it's another week of waiting for these sentencing rulings.  Fortunately, absent some dramatic or unexpected development (such as a order for reagument), I think we can reasonably expect to see opinions in all of these cases within the next three weeks.

Anyone yet eager to make predictions on the timing, outcomes, vote counts or opinion writers in these big sentencing cases.  At this moments I am inclined to guess we will get Southern Union next week, the juve LWOP cases the week of June 18, and the FSA pipeline cases the week of June 25.  In addition, I think the defendants are likely to previal in these cases by votes of 7-2, 5-4, and 6-3, with Justices Thomas, Kennedy and Sotomayor as principal opinion writers. 

But who really knows with this Court these days!?!?

June 4, 2012 in Blakely in the Supreme Court, Jackson and Miller Eighth Amendment cases, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Sunday, June 03, 2012

NY Times editorial supports jury findings for mandatory minimums

A few weeks ago, I noted and promoted in this post the remarkable opinion by US District Judge William Young in US v. Gurley, No. 10-10310 (D. Mass. May 17, 2012). I am consequently pleased to see that this past weekend the New York Times had this editorial about the case, headlined "A Jury Draws a Line." Here are excerpts:

Rodney Gurley faced a mandatory minimum sentence of 10 years in federal prison for possession of 28 or more grams of crack cocaine with an intent to distribute it because he had previously been convicted of a felony.

The police found 32 grams in the apartment where he was arrested, but a federal jury in Boston found that the amount of crack “properly attributable” to Mr. Gurley did not exceed 28 grams. Relying on the jury for guidance, Federal District Judge William Young sensibly imposed a sentence of 30 months.  That riled the Justice Department, which insisted it was entitled to have the judge, not the jury, decide factors in sentencing and that Mr. Gurley should have gotten the 10-year minimum.  The government has appealed the sentence to the United States Court of Appeals for the First Circuit....

Since federal mandatory minimum sentences were enacted in 1986 and prosecutors began to “run our federal criminal justice system,” as the judge said, much of the debate has focused on the reduction of judges’ power in sentencing.  The Booker case and others have restored some of it, but there remain excessive mandatory minimums, which Congress should rescind.

But Judge Young, like other judges and scholars, has campaigned to restore the jury’s constitutional role in sentencing to ensure that criminal laws are applied fairly.  The federal sentencing guidelines and mandatory minimums have substantially diminished that role.  In this case, Judge Young properly used it in imposing a sentence based on the jury’s finding about a critical fact.

June 3, 2012 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Monday, May 28, 2012

"A Tough Judge’s Proposal for Fairer Sentencing"

The title of this post is the headline of this new Sidebar column by Adam Liptak now available via the New York Times. The piece does a terrific job reporting upon and providing context concerning US District Judge John Gleeson's fascinating Dossie opinion from earlier this year (which I blogged about here and here). The piece also makes (too) brief mention of US District Judge William Young's similarly themed (and similarly fascinating) opinion in Gurley from earlier this month (discussed here). Here are excerpts from the Liptak piece:

Judge John Gleeson hears cases where he used to prosecute them, in the federal courthouse in Brooklyn. There, in 1992, he led the team of prosecutors that put the Mafia boss John J. Gotti in prison for life. Judge Gleeson is not shy about meting out tough sentences.  “Most people, including me,” he wrote in a 2010 decision, “agree that the kingpins, masterminds and midlevel managers of drug trafficking enterprises deserve severe punishment.”

But he has lately been saying that his old employer, the Department of Justice, has stopped living up to its name when it comes to some small-time criminals.  Almost 20 years to the day after delivering his closing argument in the Gotti trial, Judge Gleeson considered the fate of Jamel Dossie, whom he called “a young, small-time, street-level drug dealer’s assistant.”

Mr. Dossie was an intermediary in four hand-to-hand crack sales, for which he made a total of about $140.  Two of the sales exceeded, barely, the 28-gram threshold that allows prosecutors to call for a mandatory five-year sentence.  “Just as baseball is a game of inches,” Judge Gleeson wrote, “our drug-offense mandatory minimum provisions create a deadly serious game of grams.”

It is a curious game, one in which a participant rather than the supposed umpire can have the last word, Judge William G. Young of Federal District Court in Boston wrote in a ruling in another case a couple of weeks ago.  “Prosecutors run our federal justice system today,” Judge Young wrote.  “Judges play a subordinate role — necessary yes, but subordinate nonetheless.  Defense counsel take what they can get.”

The prosecutors’ decision to invoke the law calling for a mandatory sentence in Mr. Dossie’s case meant that Judge Gleeson had no choice but to send Mr. Dossie away for five years. Had his hands not been tied, Judge Gleeson wrote, “there is no way I would have sentenced” Mr. Dossie to so long a sentence.  “We had a ‘sentencing proceeding’ that involved no written submissions, no oral advocacy and no judging,” he wrote. “The proceeding had all the solemnity of a driver’s license renewal and took a small fraction of the time.”

The Dossiecase illustrates what some judges say is a common problem: Prosecutors’ insistence on mandatory minimum sentences for minor players in the drug trade has warped the criminal justice system and robbed judges of sentencing authority.... As for Mr. Dossie, the judge wrote, “no one could reasonably characterize him as a leader or manager of anything, let alone of a drug business.”

Judge Gleeson called on Attorney General Eric H. Holder Jr. to implement a new policy at the Department of Justice. “D.O.J. should seek mandatory minimum sentences,” the judge wrote, “only in the cases for which Congress intended them: in cases against leaders and managers of drug enterprises, not the low-level offenders like Dossie who constitute the bulk of the federal drug docket.”

About 74 percent of defendants charged with crimes involving crack cocaine faced a mandatory minimum sentence in the year that ended in September, according to statistics compiled by the United States Sentencing Commission.  But only 5 percent of them led or managed a drug business.

A Justice Department spokeswoman said the administration supported the judicious use of mandatory minimum sentencing laws for some serious crimes.  In a 2010 report, Lanny A. Breuer, an assistant attorney general, said mandatory minimum sentences “remove dangerous offenders from society, ensure just punishment and are an essential tool in gaining cooperation from members of violent street gangs and drug distribution networks.”

Paul G. Cassell, a former federal judge who is now a law professor at the University of Utah, said Judge Gleeson’s proposal to have the Justice Department limit its use of mandatory minimum sentences in drug cases to defendants who played a leadership role was “a brilliant package.”  It was, he said, administrable, fair and “doable in this political environment” because it requires no action from Congress.

Jamel Dossie, meanwhile, is serving what Judge Gleeson called an onerous and disproportionate sentence.  “The only reason for the five-year sentence imposed on Dossie,” Judge Gleeson wrote, “is that the law invoked by the prosecutor required it. It was not a just sentence.”

Some recent related posts:

May 28, 2012 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

Friday, May 25, 2012

Mandatory minimums require federal drug defendant's sentence of life + five more years in prison

This local story out of Iowa, headlined "Waterloo man given life plus 5 years in prison for drug charges," provides an amusing example of the crazy kinds of sentences that can be required by federal mandatory minimum sentencing provisions.  Here are the details:

A eastern Iowa man convicted in a drug distribution ring received a life sentence, plus five years. A U.S. District Court judge sentenced 38-year-old Lawrence Johnson of Waterloo after a jury found him guilty of conspiracy to distribute heroin, distribution of heroin, possession with intent to distribute heroin, possession of a firearm during a drug crime, and being a felon in possession of a firearm.

Assistant U.S. Attorney, Peter Deegan, says the sentence is unusual, but is based on the sentencing guidelines for the crimes. “Because Lawrence Johnson had multiple prior felony drug convictions, he was subject to a mandatory life sentence on the drug conspiracy count. In addition, he was convicted of possession of a firearm in furtherance of drug trafficking offense, which also requires a consecutive sentence of five years. So he was ultimately sentence to a mandatory life sentence, plus an additional five years in prison,” Deegan explains.

Deegan says the heroin distribution ring involving Johnson was widespread. “Including Detroit, Memphis, Chicago and then Cedar Rapids and Waterloo. He would bring about 10 to 20 grams of heroin per trip from Chicago to Iowa, and then it was cut — so that for instance the tens grams would become 30 grams — and he was distributing it into quantities that would be broken down into two-gram bags,” Deegan says.

Deegan says Johnson was facing a very long time in prison even if he hadn’t been sentenced to life plus five years. “Because he was what we call a career offender under the United States sentencing guidelines, he was subject to a recommended range of 360 months or 30 years to life anyway,” Deegan says.

May 25, 2012 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (13) | TrackBack

Sunday, May 20, 2012

Extreme sentence in warning shot case drawing more criticisms of mandatory minimums

I am pleased to see that the extreme mandatory minimum sentence given to Marissa Alexander in Florida is continuing to generate controversy and criticism in the MSM.  This AP article, headlined "Critics hit mandatory-minimum law after woman gets 20 years in prison for firing warning shot," highlights some of the buzz:

Marissa Alexander had never been arrested before she fired a bullet at a wall one day in 2010 to scare off her husband when she felt he was threatening her.  Nobody got hurt, but this month a northeast Florida judge was bound by state law to sentence her to 20 years in prison.... Because she fired a gun while committing a felony, Florida’s mandatory-minimum gun law dictated the 20-year sentence.

Her case in Jacksonville has drawn a fresh round of criticism aimed at mandatory-minimum sentencing laws.  The local NAACP chapter and the district’s African-American congresswoman say blacks more often are incarcerated for long periods because of overzealous prosecutors and judges bound by the wrong-headed statute.  Alexander is black.

It also has added fuel to the controversy over Florida’s “stand your ground” law, which the judge would not allow Alexander to invoke.  State Attorney Angela Corey, who also is overseeing the prosecution of shooter George Zimmerman in the Trayvon Martin case, stands by the handling of Alexander’s case.  Corey says she believes Alexander aimed the gun at the man and his two sons, and the bullet she fired could have ricocheted and hit any of them.

At the May 11 sentencing, Alexander’s relatives begged Circuit Judge James Daniel for leniency but he said the decision was “out of my hands.” “The Legislature has not given me the discretion to do what the family and many others have asked me to do,” he said.

The state’s “10-20-life” law was implemented in 1999 and credited with helping to lower the violent crime rate.  Anyone who shows a gun in the commission of certain felonies gets an automatic 10 years in prison.  Fire the gun, and it’s an automatic 20 years.  Shoot and wound someone, and it’s 25 years to life.

Critics say Alexander’s case underscores the unfair sentences that can result when laws strip judges of discretion.  About two-thirds of the states have mandatory-minimum sentencing laws, mostly for drug crimes, according to a website for the Families Against Mandatory Minimums advocacy group. “We’re not saying she’s not guilty of a crime, we’re not saying that she doesn’t deserve some sort of sanction by the court,” said Greg Newburn, Florida director for the group.  Rather, he said, the judge should have the authority to decide an appropriate sanction after hearing all the unique circumstances of the case....

Victor Crist was a Republican state legislator who crafted the “10-20-life” bill enacted in 1999 in Gov. Jeb Bush’s first term.  He said Alexander’s sentence — if she truly did fire a warning shot and wasn’t trying to kill her husband — is not what lawmakers wanted.  “We were trying to get at the thug who was robbing a liquor store who had a gun in his possession or pulled out the gun and threatened someone or shot someone during the commission of the crime,” said Crist, who served in the state House and Senate for 18 years before being elected Hillsborough County commissioner....

“The irony of the 10-20-life law is the people who actually think they’re innocent of the crime, they roll the dice and take their chances, and they get the really harsh prison sentences,” Newburn said. “Whereas the people who think they are actually guilty of the crime take the plea deal and get out (of prison) well before.  So it certainly isn’t working the way it is intended.”...

Newburn says Alexander’s case is not an isolated incident, and that people ensnared by mandatory-minimum laws cross racial barriers.  In central Florida, a white man named Orville Lee Wollard is nearly two years into a 20-year sentence for firing his gun inside his house to scare his daughter’s boyfriend.  Prosecutors contended that Wollard was shooting at the young man and missed.

He rejected a plea deal that offered probation but no prison time.  Like Alexander, he took his chances at trial and was convicted of aggravated assault with a firearm.  Circuit Judge Donald Jacobsen said he was “duty bound” by the 10-20-life law to impose the harsh sentence. “I would say that, if it wasn’t for the minimum mandatory aspect of this, I would use my discretion and impose some separate sentence, having taken into consideration the circumstances of this event,” Jacobsen said.

Recent related posts:

May 20, 2012 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (9) | TrackBack

Thursday, May 17, 2012

Two notable forthcoming FAMM events

I am happy to spotlight two notable events put together by Families Against Mandatory Minimums described to me via an e-mail:

The first event is at the National Press Club in Washington DC on Thursday, May 24, from 10-11am: a panel will discuss Dafna Linzer’s shocking Washington Post article on the failures of the Office of the Pardon Attorney (OPA) regarding Clarence Aaron’s commutation request.  The panel will include Dafna, former OPA staffer Sam Morison,  Debi Campbell (a former prisoner who did not receive a commutation), and Linda Aaron, Clarence’s mother.  FAMM is calling on Congress to investigate OPA.

The second event happens on-line on Friday, May 18 (tomorrow): with a focus on Florida laws and the 20-year mandatory minimum Marissa Alexander received for defending herself against her abusive husband, FAMM us trying a “Facebook forum.” FAMM's Florida project director, Greg Newburn, will be taking live Q&A on the topic. This event is a bit of an experiment, and FAMM is hoping for a good turnout (via this link).

May 17, 2012 in Clemency and Pardons, Mandatory minimum sentencing statutes, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Saturday, May 12, 2012

Another obvious mandatory sentencing injustice in Florida "warning shot" case

As reported in this CNN story, headlined "Florida woman sentenced to 20 years in controversial warning shot case," another high-profile shooting case in Florida has produced a different kind of criminal justice controversy.  Here are the details:

Saying he had no discretion under state law, a judge sentenced a Jacksonville, Florida, woman to 20 years in prison Friday for firing a warning shot in an effort to scare off her abusive husband.

Marissa Alexander unsuccessfully tried to use Florida's controversial "stand your ground" law to derail the prosecution, but a jury in March convicted her of aggravated assault after just 12 minutes of deliberation.

The case, which was prosecuted by the same state attorney who is handling the Trayvon Martin case, has gained the attention of civil rights leaders who say the African-American woman was persecuted because of her race.

After the sentencing, Rep. Corrine Brown confronted State Attorney Angela Corey in the hallway, accusing her of being overzealous, according to video from CNN affiliate WJXT. "There is no justification for 20 years," Brown told Corey during an exchange frequently interrupted by onlookers.  "All the community was asking for was mercy and justice," she said.

Corey said she had offered Alexander a plea bargain that would have resulted in a three-year prison sentence, but Alexander chose to take the case to a jury trial, where a conviction would carry a mandatory sentence under a Florida law known as "10-20-life." The law mandates increased penalties for some felonies, including aggravated assault, in which a gun is carried or used.

Corey said the case deserved to be prosecuted because Alexander fired in the direction of a room where two children were standing. Alexander said she was attempting to flee her husband, Rico Gray, on August 1, 2010, when she picked up a handgun and fired a shot into a wall.  She said her husband had read cell phone text messages that she had written to her ex-husband, got angry and tried to strangle her.

She said she escaped and ran to the garage, intending to drive away.  But, she said, she forgot her keys, so she picked up her gun and went back into the house. She said her husband threatened to kill her, so she fired one shot. "I believe when he threatened to kill me, that's what he was absolutely going to do," she said.  "That's what he intended to do. Had I not discharged my weapon at that point, I would not be here."...

A jury convicted Alexander in March and Judge James Daniel denied her request for a new trial in April.  Daniel handed down the sentence Friday after an emotional sentencing hearing during which Alexander's parents, 11-year-old daughter and pastor spoke on her behalf.

Several people had to be escorted from the courtroom after breaking out singing and chanting about a perceived lack of justice in the case, but Daniel made a point to say that he had no choice under state law. "Under the state's 10-20-life law, a conviction for aggravated assault where a firearm has been discharged carries a minimum and maximum sentence of 20 years without regarding to any extenuating or mitigating circumstances that may be present, such as those in this case," Daniel said.

Brown, the Jacksonville congresswoman, told reporters after the sentencing that the case was a product of "institutional racism."

"She was overcharged by the prosecutor.  Period," Brown said.  "She never should have been charged."  Brown has been more complimentary about Corey's work in the Trayvon Martin case, where her office filed second degree murder charges against neighborhood watch volunteer George Zimmerman in the February 26 death of the unarmed African-American teen-ager.

It is sad, very disappointing and ultimately quite harmful that Rep. Corrine Brown is apparently so eager to assert that the injustice in this case reflects "institutional racism" and misuse of prosecutorial discretion.  It seems far more appropriate to complain that the injustice in this case reflects structural flaws in Florida's sentencing laws and mistakes by the state legislature to fail to provide a safety-valve from the application of broad mandatory sentencing provisions.

As the CNN story reveals, the prosecutor apparently had the ability and authority to prevent application of Florida's "10-20-life" sentencing law if Marissa Alexander had been wiling to forgo her constitutional right to trial to have the judicial system consider her self-defense claims.  But after Alexander decided to exercise her trial rights, then her conviction apparently deprived a judge or any other authority the ability and authority to sentence her to anything less than 20 years in prison.  Without knowing more about the case, I am not sure if the three-year term offered in the plea or even a lesser sentence would have been appropriate, but it seem obvious to me that a 20-year term is grossly excessive for Alexander's offense conduct.

Bemoaning this case as a reflection of "institutional racism" brings far more heat than light to this dark (but not uncommon) example of mandatory sentencing injustice.  A focus instead on the problems with letting only prosecutors and not judges decide if a case merits an exception to strict sentencing rules could help this case engender needed structural reforms rather than more racial polarization.  Helpfully, the folks at FAMM are effectively using this case to bring attention to these critical sentencing matters, but I fear that the eagerness of Rep. Corrine Brown to play the race card will eclipse FAMM's efforts to use this kind of case to foster sober and needed sentencing reforms.

Though I am not certain of the sentencing commutation authority of Florida's Governor, this case seems to cry out for executive clemency.  Though involving a very offense environments, I am reminded of the high-profile "border agent" case from a few years ago in which two federal border agents got saddled with a sentences of more than a decade after failed self-defenses claims due mandatory federal gun sentencing provisions.  On his last day in office, as detailed here, President George W. Bush justifably commuted the sentences of these border agents.  I hope Florida's Governor has both the power and the wisdom to use the same means to undue an obvious sentencing injustice in this case.

May 12, 2012 in Clemency and Pardons, Examples of "over-punishment", Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (34) | TrackBack

Wednesday, May 09, 2012

Former federal prosecutor urges "Mandatory minimums for kingpins only"

This recent National Law Journal commentary by Jim Walden, a former federal prosecutor in EDNY, voices support for US District Judge John Gleeson's recent recommendation in US v. Dossie, No. 11-CR-237 (EDNY Mar. 30, 2012) (discussed here), that federal prosecutors show much more restraint in their use of federal drug statutes that carry mandatory minimum sentencing terms.  Here are excerpts:

I support the war on drugs. Indeed, I can fairly be called a hawk. I spent most of my nearly nine-year career as a federal prosecutor attacking (largely white and Asian) drug-trafficking organizations and putting their members behind bars for long stretches. For every wide-eyed, liberal, young lawyer I meet who naïvely criticizes the wisdom and resources this "war" has entailed, I issue the same challenge: Read the daily papers and keep track of drug-related murders, assaults, robberies, break-ins and general violence for six months — and then explain to me why drug enforcement should not be one of our top enforcement priorities.

Cracking down on the street-level organizations, and stopping the collateral damage they inflict, is a laudable goal, an essential one.  Doing so at the expense of fairness and equity is not, and street-level traffickers should not face the same consequences Congress intended for kingpins.

No one would describe Judge John Gleeson of the Eastern District of New York as "soft" on drug crime, and some might describe him as fairly "hawkish" himself. His prestigious career as a federal prosecutor, spanning almost two decades, bears this out.... In a recent case, U.S. v. Dossie, Gleeson called on U.S. Attorney General Eric Holder Jr. to reform DOJ's inconsistent and irrational use of mandatory-minimum sentences in drug cases, reserving them for drug kingpins, as Congress intended.  In clear and terse prose, Gleeson described a system that works to "strip criminal defendants of the due-process rights we consider fundamental to our justice system."

The specific case concerned — of course — a young, black, street-level dealer, who turned to drug distribution to support his habit. This did not stop DOJ from seeking to enforce a harsh mandatory-minimum sentence.  Gleeson's conclusion is clear: "This case illustrates how mandatory minimum sentences in drug cases distort the sentencing process and mandate unjust sentences."  He respectfully urged the attorney general to reform DOJ's policy, reserving the use of mandatory-minimum penalties for the managers and leaders of drug enterprises whom Congress intended to target.

Eric Holder should listen to John Gleeson.

May 9, 2012 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4) | TrackBack

Monday, April 30, 2012

Do capital repeal and three-strikes reform initiatives help or hurt each other in California?

As noted in this prior post, it became official last week that Californians will get a chance to vote this fall on a ballot initiative to repeal the state's death penalty.  In addition, as reported in this effective press story from late last week headlined "Three Strikes Law initiative likely to qualify for Nov. ballot," it also now appears that voters at the same time will have a chance to reform the state's (in)famously harsh three-strikes sentencing law. Here are the basics on that front:

An initiative written by Stanford University professors to scale back California's tough Three Strikes Law has garnered more than 830,000 signatures of support, virtually ensuring the measure will make the November ballot and triggering the state's latest struggle over how harshly criminals should be treated.

California is the only one of the 26 states with three strikes laws to allow prosecutors to charge any felony as a third strike -- and then to lock up the offenders for 25 years to life. The proposed initiative would reserve that penalty for the baddest of the bad, including murderers, rapists and child molesters.

Supporters turned in more than 830,000 signatures to state election officials Thursday -- 504,760 more than needed. They also announced the endorsement of Los Angeles County District Attorney Steve Cooley -- a Republican -- marking a crucial step toward a bipartisan coalition.

"The Three Strikes Reform Act is right for California," Cooley said. "It will ensure the punishment fits the crime. Dangerous recidivist criminals will remain behind bars for life, and our overflowing prisons will not be clogged with inmates who pose no risk to public safety."

Under the existing Three Strikes sentencing scheme, offenders who have committed such relatively minor third strikes as stealing a pair of socks, attempting to break into a soup kitchen to get something to eat and forging a check for $146 at Nordstrom have been sentenced to life in prison.

Cooley's support is particularly notable because he has taken a conservative position on two other criminal-justice controversies in California. He opposes a November ballot measure that would scrap the death penalty and has sharply criticized the Legislature's massive "realignment" program, which started in October to relieve prison overcrowding, for effectively reducing the amount of time low-level offenders spend behind bars.

But Mike Reynolds, a Fresno man who helped draft the Three Strikes Law after his daughter was slain in 1992 by two repeat offenders, said prosecutors like Cooley should have more discretion over how to charge anyone with two strikes on their record who commits another felony, no matter how minor. "It's easy if you live in Palo Alto, where Stanford is and where it's safe, to be for this," Reynolds said. "The only question voters need to answer is which of these offenders with at least two serious or violent convictions on their record would you like to have living next door to you? And if you wouldn't want them next door to you, why would you put them next to any California family?"...

The new measure would allow only certain hard-core criminals to be put away for life for any felony offense, including shoplifting, while restricting the third strike to a serious or violent felony for everyone else.  It also does not include changing the rules for second-strikers, which currently call for sentences to be doubled in many cases, even if the second offense is not serious or violent.  Although an effort to alter the law in 2004 required third-strikers whose last offense was nonviolent and nonserious to be resentenced, the new initiative would allow only third-strikers to ask the courts to resentence them.

District attorneys in the Bay Area are expected to support the initiative, though several were noncommittal about it Thursday.  A spokeswoman for Alameda County District Attorney Nancy O'Malley said she doesn't take a position on pending initiatives. Steve Wagstaffe, San Mateo's top prosecutor, said he would "not be bothered if it won" because it already is extremely rare for his office to seek life sentences for people who commit nonviolent or nonserious offenses, with the exception of sex crimes.

Santa Clara County District Attorney Jeff Rosen said he'll make a final decision after a meeting in June of the California District Attorneys Association.  "I believe the Three Strikes Law should be reformed," Rosen said through a spokesman.  "The Stanford initiative contains some good ideas."...

Advocates predict the savings will prove persuasive, particularly with critical swing voters, though they also plan to frame the campaign in terms of public safety and fairness.  A previous measure in 2004 failed by about 3 percentage points after a last-minute media blitz by then-Oakland Mayor Jerry Brown, then-Gov. Arnold Schwarzenegger and former Gov. Pete Wilson. Brown has declined to comment on the current effort.

Opposition to the new measure is expected to come largely from the Central Valley and parts of Southern California.  The previous measure, Proposition 66, sought to limit felonies that trigger a third strike to violent or serious crimes in every case.

This latest effort to reform California's three-strikes law via inititative is fascinating and worth watching closely in its own right.   But the fact that this reform effort will appear on the ballot (and likely get less attention both nationwide and within California) at the same time as an inititative to repeal yhe state's death penalty adds an extra important (and distorting?) element to the public discourse. 

I can readily imagine some (many? most?) criminal justice reform advocates urging a "yes" vote on both the death penalty repeal and the three-strike reform initiatives. For example, this recent editorial from the San Francisco Examiner, headlined "Time to end the death penalty, reform three-strikes law," wastes little time getting on record support for both initiatives. 

But, as the report above highlights, there is reason to expect some (many? most?) California prosecutors will be fine with the three-strikes reform initiative but will oppose repeal of the death penalty.  In addition, I would not be surprised if some hard-core death penalty abolitionists will express no more than luke-warm support for three-strikes reform if (when?) any polling data suggest that voters may be likely to vote for only one and not both of these sentencing reform proposals.

For a whole bunch of reasons, I do not think these distinct California reform initiative should necessarily stand or fall together.  And yet, I will not be surprised if they do, and I also cannot figure out if this reality makes me extra excited or extra concerned about crime and punishment debates in California over the next sixth months. 

April 30, 2012 in Death Penalty Reforms, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

Tuesday, April 24, 2012

Very different case provides a very different (sentencing) perspective on Florida gun laws

This new CNN article, headlined "Stand your ground law under scrutiny in domestic violence case," provides a very different view of Florida's criminal justice system and gun laws than comes via the Matin-Zimmerman case. Here are excerpts from the piece:

Marissa Alexander, a 31-year-old mother of three, pleaded for her freedom as an inmate in the Duval County Jail in Jacksonville, Florida. "This is my life I'm fighting for," she said while wiping away tears. She added, "If you do everything to get on the right side of the law, and it is a law that does not apply to you, where do you go from there?"

Alexander is referring to Florida's so-called stand your ground law, a law that has come under scrutiny since the killing of Trayvon Martin. Unlike the Martin case, which involved one stranger killing another, Alexander's case involved her gun and her abusive husband.

On August 1, 2010, she said her husband, Rico Gray, read text messages on her phone that she had written to her ex-husband. She said Gray became enraged and accused her of being unfaithful. "That's when he strangled me. He put his hands around my neck," Alexander said.

She managed to escape his grip but instead of running out the front door of their home, she ran into the garage, she said, to get into her truck and drive away. Alexander said that in the confusion of the fight, she forgot to get her keys and the garage door wouldn't open, so she made a fateful decision. "I knew I had to protect myself," she said, adding, "I could not fight him. He was 100 pounds more than me. I grabbed my weapon at that point."

She went back inside the house and when Gray saw her pistol at her side, she said he threatened to kill her, so she raised the gun and fired one shot. "I believe when he threatened to kill me, that's what he was absolutely going to do. That's what he intended to do. Had I not discharged my weapon at that point, I would not be here."

Alexander, however, said she did not aim the gun at her husband.  She said she fired into the air intending to scare him away and Gray quickly left the house with his two children. No one was hurt in the incident, but Alexander sits in jail facing a 20-year sentence on three charges of aggravated assault with a deadly weapon....

Alexander's attorney filed a motion for dismissal under the stand your ground law but at that proceeding her husband changed his story.  Gray said he lied during his deposition after conspiring with his wife in an effort to protect her.  At the hearing, he denied threatening to kill his wife, adding, "I begged and pleaded for my life when she had the gun." The motion was denied by the judge.

Alexander was offered a plea deal..., but she opted to go to trial. A jury found Alexander guilty in 12 minutes. She is baffled why invoking the stand your ground law wasn't successful in her case. "Other defendants have used it. What's so different about my situation that it doesn't apply to me?" she asked.

The local NAACP believes race may have played a role."There's a double standard with stand your ground," said Isaiah Rumlin, president of the Jacksonville Chapter of the NAACP. "The law is applied differently between African-Americans and whites who are involved in these types of cases," he added. Rumlin cited two shooting cases in Florida with white shooters: One was had a successful stand your ground defense and the other has yet to be charged with a crime....

Through a spokeswoman, State Attorney Angela Corey declined to comment on the case until after the sentencing. Alexander's attorney, Kevin M. Cobbin, is fighting for a new trial and that hearing is tentatively scheduled for next week. If that motion is denied, Alexander will receive a mandatory 20-year sentence with no possibility of parole.

In part because this case is garnering new media attention, the folks at Families Against Mandatory Minimums have released this notable new press release to spotlight the broader sentencing concern these kinds of cases implicate.  Here is how the press release begins:

FAMM President Julie Stewart today called on Florida lawmakers to repeal the state’s “10-20-Life” automatic prison sentence for assault with a deadly weapon without intent to kill. The call comes as Marissa Alexander, a 31-year-old mother of three, prepares to be sentenced for a 2010 incident in which she fired a gun into the ceiling of her house to persuade her abusive husband to leave.

“A lot of attention has been paid to Florida’s ‘Stand Your Ground’ law and far too little to the state’s extreme, one-size-fits-all sentencing laws,” Ms. Stewart said.  “Less than three years ago, Orville Lee Wollard, a lawful gun owner, fired a warning shot in his home to chase off a young man who had been abusing his teenage daughter.  After Wollard rejected a plea deal and a jury rejected Wollard’s self-defense claim, a Florida judge was forced by the state’s mandatory minimum sentencing law for assault to send Wollard to prison for 20 years.  Mr. Wollard’s judge stated that he thought the sentence was excessive, but said his hands were tied.

“In the coming weeks, Marissa Alexander, who was also found guilty of assault with a deadly weapon, will likely be sentenced to the same 20-year mandatory minimum prison term. While reasonable people can disagree on whether Mr. Wollard or Ms. Alexander deserve any prison time for their conduct, no one can honestly believe that these were the types of cases the legislature had in mind when it passed the 10-20-Life automatic gun sentence,” Stewart said.

April 24, 2012 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Thursday, April 19, 2012

Why I think defendants should win "fight about competing background rules" in Hill and Dorsey

Despite lots of travels and other commitments, I have had time now to review and reflect on the SCOTUS oral arguments earlier this week in the Fair Sentencing Act pipeline cases Hill and Dorsey (basics here, transcript here).  Though many parts of the argument merit discussion, here I will focus upon Miguel Estrada's crisp and spot-on statement that these cases ultimately are a "fight about competing background rules."  Specifically, I will explain why I think, as a matter of both doctrine and policy, FSA defendants ought to win the fight in this particular setting where all the FSA does is lower the trigger quantities of crack for applicable mandatory minimum prison terms.

Here I must start by channeling my inner Blackstone to note that the common-law abatement doctrine meant that even if and when a criminal statute was amended to increase penalties, the "background rule" was that defendants could not even be prosecutedfor criminal behaviors that took place prior to this statutory change.  So, for anyone drawn to common-law rules, and especially for those who believe in the statutory interpretation canon that statutes in derogation of the common law should be narrowly construed, the defendants have the common-law background in their favor.

Of course, Congress in 1871 passed the "Savings Statute" which reverses this common-law background rule with a new background rule providing that the "repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability."  This statute sets out what might be called the Savings background rule and it is the rule that Estrada as the SCOTUS-appointed amicus argues should mean the defendants lose in Hill and Dorsey.

Notably, this Savings background rule has some indisputable import in these cases: absent this background rule, the common-law abatement doctrine would mean the defendants in Hill and Dorsey could not even be prosecuted for their crack offenses!  But nobody has argued that these defendants should now get this common-law windfall and be free of "any penalty, forfeiture, or liability" for their pre-FSA conduct.  Rather the dispute in these cases is whether they should be subject at a post-FSA sentencing to the pre-FSA mandatory minimum triggering levels for certain long prison terms for minor crack offenses.  And, as SCOTUS interpretation of the Savings background rule states, we are to look to the express text and the necessary implications of the new statute to figure out what laws apply to crack defendants being sentenced now.

Here is where the defendants can and have stressed another background rule, namely the Sentencing Reform Act's key provision, 18 U.S.C. § 3553(a)(4)(ii), which calls for sentencing courts to apply the guidelines sentencing law "in effect on the date the defendant is sentenced."  This statutory provision is, functionally, an express reversal by Congress of the Savings background rule for sentencing purposes under modern guideline reforms. 

Congress in the FSA failed to include a specific provision referencing either the Savings background rule or the SRA law-in-effect-at-date-of-sentencing background rule.  But the SRA background rule would seem to be closer in both time and relevance to the FSA's new sentencing provisions AND all major crack offenders are necessarily getting the benefit of the SRA background rule (i.e., they are getting sentenced based on the reduced 18:1 crack sentencing provisions) because the guidelines and not the old (or new) mandatory minimums frame/define the sentences they realistically face.  It seems very weird to think Congress wanted the Savings background rule to sting lesser crack offenders, while the SRA background rule would benefit only more serious offenders.

In addition, the SRA has another important background rule, namely that sentencing judges are always required in every case to impose sentences "sufficient, but not greater than necessary" to achieve the purposes of punishment in the SRA.  This additional "background rule" ensures defendants should not get any  "sentencing windfall" from application of the new provisions of the FSA, but rather these provisions will merely allow judges to no longer be compelled (by now repealed mandatory minimums) to impose sentences for low-level crack offenders that they think are "greater than necesary" (a view Congress and the President has embraced as evidenced by the FSA's passage).

Further still, I think statutory construction canons like the rule of lenity and constitutional doubt provide still further "background rules" for an interpretation of the FSA to favor the defendants here.  Indeed, the very fact that SCOTUS had to appoint an amicus to make an argument for the Savings background rule and nobody else (including no member of Congress) has urged that background rule to prevail further contributes to my (admittedly biased) view that the defendants should win this "fight about competing background rules" in Hill and Dorsey.

A few recent posts on these SCOTUS cases:

April 19, 2012 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact | Permalink | Comments (8) | TrackBack

Wednesday, April 18, 2012

"Taxpayers should demand cost-effective crime policies"

The title of this post is the headline of this commentary published yesterday at The Hill's Congress Blog. It was authored by Julie Stewart, the president and founder of Families Against Mandatory Minimums, and here are excerpts:

Last year, Americans for Tax Reform President Grover Norquist, the Cato Institute’s director of criminal justice, Tim Lynch, and former Republican congressman and Bush administration DEA chief, Asa Hutchinson, joined me for a briefing to discuss the dozens of ways Congress and the administration could cut millions from wasteful anti-crime programs without jeopardizing public safety.  Some cost-cutting reforms, like allowing elderly and ill patients (who pose no threat to society) to leave prison early and serve out their punishment in alternate ways, are obvious and overdue.

Others, like eliminating wasteful mandatory minimum sentencing laws, are being approved by cash-strapped states across the country.  Governors and state lawmakers do not love their children any less, but they realize that locking up nonviolent criminals for decades is not a cost-effective way to keep their communities safe.  New Jersey Gov. Chris Christie (R-NJ) recently announced an ambitious plan to require treatment in lieu of prison for all first-time drug offenders in the Garden State.  Christie’s pitch?  Since treatment is a fraction of the cost of prison, his new policy will save money and lives.

Contrast this common-sense approach with federal law, where a mother like Sabrina Giles is sentenced to 12 years in prison for allowing her abusive boyfriend to run his meth dealing business out of her New Mexico house.  Ms. Giles, who had never even been arrested before, was gainfully employed and providing for her young daughter, despite struggling with substance abuse.  What she needed was drug treatment, but what she got was more than a decade in federal prison.  Her daughter was forced to grow up without the mother she loved and is now a teenager.

This isn’t tough on crime -- it’s just stupid.

Fortunately, some in Washington, D.C. are ready for reform.  Two years ago, anti-tax hero Norquist and former American Conservative Union president David Keene testified before the House Crime Subcommittee in opposition to federal mandatory minimum sentences.  Said Norquist, “The benefits, if any, of mandatory minimum sentences do not justify…[the] burden to taxpayers.”  The subcommittee’s ranking member, Rep. Bobby Scott (D-VA) has long supported reform.  More recently, Senator Rand Paul (R-KY) announced his strong opposition to mandatory minimums.  Paul’s position makes sense given his Tea Party roots and that coalition’s aversion to excessive federal spending.

Most encouraging, the American public gets it.  When asked by Pew if they agree with the statement, “Some of the money that we are spending on locking up low-risk, nonviolent inmates should be shifted to strengthening community corrections programs like probation and parole,” a remarkable 85 percent of voters agreed.

It’s time to stop wasting money on anti-crime programs and policies that don’t keep us safe, but make our tax bills higher.

April 18, 2012 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Tuesday, April 17, 2012

Early report on SCOTUS oral arguments in FSA pipeline cases

Thanks to this post by Lyle Denniston at SCOTUSblog, headlined "Argument recap: A dilemma over race," we can all get a quick account of the SCOTUS oral arguments this morning in Hill and Dorsey. Here is how the post begins:

A racial issue in criminal sentencing that has bedeviled all three branches of the federal government for a quarter century took a little time to emerge in a Supreme Court argument on Tuesday, but when it did, it had a noticeable impact on the Justices.  After spending much of the first half-hour focusing on the meaning of two federal statutes, one passed in 1871, the other in 2010, the Court appeared strongly inclined to limit those who could benefit from Congress’s keen desire to narrow the racial disparity in sentencing for cocaine crimes.

But the tone changed as the Justices turned their focus to the prospect of perpetuating that racial disparity for at least a few years longer. That began to look quite unattractive to the Court.

I have a long plane ride this afternoon during which I will poor over the full argument transcript (which is now available at this link), and I am certain I will have a lot more to say about what the Justices had to say today later tonight.

UPDATE A cranky internet connection while on the road has prevented me from finding time to comment more on the oral arguments in these cases, but How Appealing has a collection of media reports on the argument available at this link.  With luck, I hope still to be able to discuss these cases more before the Justices themselves do at this Friday's private conference.

April 17, 2012 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Basic preview of today's SCOTUS arguments on crack sentencing rules

This morning the Supreme Court will hear consolidated argument in the Fair Sentencing Act statutory interpretation cases Hill and DorseyThis new article in the Los Angeles Times, headlined "Supreme Court to weigh crack cocaine sentences," provides a very effective basic preview, and it begins this way:

Nearly two years ago, President Obama signed into law a "fair sentencing" act to reduce the long prison terms meted out to people who were caught with small amounts of crack cocaine. But the law did not make clear whether it should apply to cases that were pending when the measure was signed.

On Tuesday, the Supreme Court will consider whether the lighter sentences apply to hundreds of cases in the pipeline when the law was signed on Aug. 3, 2010.

The issue is complicated because the Justice Department and Atty. Gen. Eric H. Holder Jr. changed their views on the matter. Shortly after Obama signed the law, Holder's department said the changes applied only to new crimes. Last summer, however, after prodding by Senate Democrats, Holder switched his position and said the new rules for crack cocaine prison terms applied to all who were sentenced after Obama signed the bill, even if their crimes took place two or three years before.

For a pair of Chicago-area defendants, the change could mean the difference between serving about three to four years in prison or 10 years behind bars. "It would be unconscionable" to sentence defendants under the law Congress had repealed as too harsh, said Mary Price, general counsel for Families Against Mandatory Minimums. She said many judges balked at using the stiff mandatory sentences after Congress changed them. "The courts were ahead of the Justice Department on this," she said.

A few recent posts on these SCOTUS cases:

April 17, 2012 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Friday, April 13, 2012

Why talk of "retroactivity" makes me (unjustifiably?) nuts in the FSA pipeline cases

Regular readers know I blogged a lot about the application of the Fair Sentencing Act to what I call "pipeline" crack cases as they worked their way through lower courts over the last two years.  But I have not blogged much about this issue since the Supreme Court in November 2011  formally took up, in the cases of Hill and Dorsey, whether the FSA's new mandatory minimum terms apply to initial sentencings that take place after the statute’s effective date if the offense occurred before that date.  I have resisted much blogging since the cert grants largely because I have played a role in helping Hill's lawyers develop their briefs for SCOTUS.

But with the Hill and Dorsey cases now due to be argued early next week before SCOTUS, and with Lyle Denniston providing this detailed account of the background and briefing in these cases at SCOTUSblog, I cannot resist discussing one matter of (seemingly important) semantics that continues to make me nutty in these FSA pipeline cases.  As the title of this post notes, the word that makes me nuts is "retroactivity" (which Lyle uses in his otherwise terrific argument preview), in part because this term can and has been given lots of meanings and in part because I do not think the issue in the Hill and Dorsey FSA pipeline cases is properly cast as a retroactivity issue.

Because I have not done a comprehensive analysis and deconstruction of the term "retroactivity" in all legal settings, maybe I am misguided to let this term drive me crazy here (and readers should tell me so in the comments).  Nevertheless, I do know that in the federal habeas context, the term "retroactivity" has been given a precise meaning and it applies only when a prisoner or defendant is seeking to take advantage of a new legal ruling after his case as become "final" all the way through direct appeals.  Stated differently, for habeas purposes, only unless and when a defendant's case is "final" all the way through all direct appeals does that defendant then have to worry about establishing that a new doctrine should apply "retroactivity."

Critically, the defendants in Hill and Dorsey had not even been sentenced at the time the FSA's new sentencing provisions became law, and so any discussion of the term "retroactivity" in their cases is necessarily inconsistent with how this term is properly deployed in the habeas context.  Moreover, and to add another layer of nuance (and potential confusion), because they had not yet been sentenced, the defendants in Hill and Dorsey at sentencing technically were not asking a court to "undo" any formal legal  determination that had already been made (in contrast to crack defendants already sentenced before the FSA became law but still pursuing direct appeals).  Rather, all that these particular pipeline defendants seek is application of the latest (reduced) sentencing law at the time of their sentencing.

Put more directly and specifically, becuase the new law Hill and Dorsey want applied is a sentencing law, I do not think it is fair or accurate to say they are seeking retroactive application of this new law because they had not yet been sentenced under the old law.  Becuase they committed their crimes at the time when the old sentencing way was still in place, I understand fully why those eager to prevent them from getting the benefits of the new law are asserting that they are pressing a "retroactivity" claim.  But I really do not think that label makes any sense here, especially given that an express key provision of the Sentencing Reform Act, 18 U.S.C. § 3553(a)(4)(ii), calls for sentencing courts generaly to apply the guidelines sentencing law "in effect on the date the defendant is sentenced."  I have never heard anyone describe this provision as the "retroactivity" instruction in the Sentencing Reform Act, nor do I think it has ever been seen as a controversial issue of "retroactivity" when defendants the benefit of reduced guideline sentences at the time of their sentencing even when/if they committed their crimes long before.

All that said and terminology concerns aside, I fully urge everyone to catch up to speed on all these issues via Lyle's effective preview at SCOTUSblog, which includes this crisp account of key elements to the dispute put before the Justices:

The briefs on the merits emphasize that the controversy before the Justices is basically one of statutory interpretation — sorting out the 2010 law, of course, but also a law enacted in 1871. The immediate question is which of the two laws should control the retroactivity question. There is, however, an implied constitutional question. Because of the disparate racial impact of the old 100-to-1 ratio, there is a lurking issue of discrimination in the case. That is being invoked by attorneys for the two Illinois men, on the theory that, to avoid confronting the constitutional issue, the Court should not validate new sentences that are based on the old ratio and thus keep a racially tinged system in operation. The Justice Department makes much of Congress’s wish not to perpetuate the disparity with its racial impact, but does not itself raise the “constitutional avoidance” issue directly....

There is no doubt that Congress definitely wanted to make a break from the experience that had prevailed almost since the very beginning of the 100-to-1 ratio in 1986, but there is enough uncertainty about its specific intentions regarding post-Act sentencing for pre-Act crimes as to leave some doubt in the Justices’ minds. Whether the Court would find ambiguity in the exact text of the 2010 law could be crucial. The amicus has gone to considerable lengths to suggest that, as between the 1871 law and the 2010 law, clarity definitely emerges most in the old law. Moreover, the mere fact that the Circuit Courts have divided as deeply as they have tends to suggest that there is no obvious way to make both the 1871 law and the 2010 statute equally operable on the retroactivity issue.

The Court, of course, is well aware, from its own experience with the crack vs. powder controversy, of the racial overtones that have lingered almost from the original enactment of the 100-to-1 ratio in 1986. A decision to keep that ratio in effect, with the continuing prospect that the racial factor will remain a feature of the actual sentences that do get imposed, may be an unattractive alternative for the Court. But if it should side with the Court-appointed amicus’s argument that numerically there won’t be a great many sentences for pre-2010 crimes, this potential may not be so significant.

Federal sentencing, as a general matter before the Court, has been a troubling and sometimes divisive issue for the Justices. What ultimately will make the difference in outcomes in this field is not easy to see in advance. The dispute over the crack vs. powder disparity has now returned to the Court with two very different perspectives laid before the Justices in the briefs. The quality of the oral argument thus might turn out to be critical in framing the response.

April 13, 2012 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact | Permalink | Comments (10) | TrackBack

Monday, April 02, 2012

Former US Attorney, and now District Judge, makes pitch to AG Holder on mandatory minimum charging

Thanks to a helpful reader, I just learned about the potent opinion issued late last week by US District Judge John Gleeson in United States v. Dossie, No. 11-CR-237 (E.D.N.Y. March 30, 2012) (available for download below). The opinion is a must-read for various reasons as these opening paragraphs suggest:

This case illustrates how mandatory minimum sentences in drug cases distort the sentencing process and mandate unjust sentences. In the substantial percentage of cases in which they apply, they produce a sentencing regime that is worse than the one the Sentencing Reform Act of 1984 was enacted to replace. They make opaque what that law was intended to make transparent. They strip criminal defendants of the due process rights we consider fundamental to our justice system. Most importantly, too many nonviolent, low-level, substance-abusing defendants like Jamel Dossie “lose their claim to a future” -- to borrow a phrase from Attorney General Eric H. Holder, Jr. -- because lengthy mandatory prison terms sweep reasonable, innovative, and promising alternatives to incarceration off the table at sentencing.

There is no need for new legislation to remedy this state of affairs. The Attorney General himself has it within his power to remedy it.  He can do so by

  • citing to the ten-year mandatory minimum in an indictment only when the government intends to prove that the defendant occupied a leadership role that warrants a four-level upward adjustment under U.S.S.G. § 3B1.1(a);  
  • citing to the five-year mandatory minimum only when the government intends to prove a managerial role worthy of a three- or two-level upward adjustment under § 3B1.1(b) or (c); and  
  • withdrawing the mandatory minimum provision from the case (or reducing it, as the case may be) if the corresponding aggravated role has not been proven by the government or admitted by the defendant.

I respectfully urge the Attorney General to implement such a policy.  It is a modest request. It asks only that the Department of Justice (“DOJ”) refrain from dictating severe mandatory minimum penalties when it cannot prove by a preponderance of the evidence that the defendant was the kind of drug dealer for whom those penalties were enacted.  By ensuring that the harsh, wooden mandatory minimum provisions are employed only in the circumstances to which Congress clearly intended to limit them, the government could reform an aspect of the criminal justice system that is in need of repair.  The reform would promote transparency and accountability in sentencing and return to defendants the due process sentencing rights that are snuffed out in cases like this one.  Finally, it would be consistent with the Attorney General’s public statements about how our criminal justice system ought to treat defendants like Dossie.

Download US-Dossie opinion

April 2, 2012 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9) | TrackBack

Monday, March 26, 2012

The Machinery of Criminal Justice #4: The Decline of Mercy

[Stephanos Bibas, guest-blogging]

In one of last week's posts on my new book, The Machinery of Criminal Justice, I noted that colonial criminal justice left room for mercy. Today I'll contrast how justice over the past two centuries has grown increasingly mechanistic and squeezed mercy out of the system.

Colonial justice embraced mercy as unfettered sovereign grace and individualized moral assessment. But to Enlightenment minds and scientists, mercy was arbitrary. Rational criminal justice, they thought, demanded equal, predictable deterrence, and mercy undercut deterrence.

Sustained criticism of exective clemency gradually restricted its use, and states gradually regulated pardons and commutations, making hearings more formal, closed to the public, and even ex parte. The clemency power, like jury nullification, came to seem lawless and unpredictable. The administrative ideal of equality across cases seemed to conflict with individualized justice and compassionate mercy. Thus, both executive clemency and jury nullification dwindled.

Another limit on mercy was the trend from indeterminate or unstructured sentences to structured sentencing guidelines. Reformers decried the dangers of arbitrariness, bias, and disparity in sentencing judges' unfettered discretion. Thus, the federal and more than a third of state sentencing systems enacted guidelines and mandatory minimum penalties to cabin harshness and mercy. The main discount available under the federal guidelines that could have related to mercy is an acceptance-of-responsibility discount. In practice, it has little to do with remorse or repentance and everything to do with whether a defendant pleads guilty.

Back in the colonial era, penalties were fixed and so nominally even less flexible than they are today. In practice, however, the rule-bound system was far more flexible than it seemed. Jurors frequently acquitted or convicted defendants of lesser offenses, and judges procured clemency for sympathetic defendants. Jurors knew the sentencing consequences of their decisions; indeed, judges advised them to take sentences into account in deciding whether to convict and for which crimes.

Today, however, jurors usually do not know the penalties, and judges instruct them to disregard sentencing in reaching their verdicts. Jurors cannot serve as the conscience of the community when they do not know what punishments they are authorizing (except in capital cases, where jurors must at least find the defendant death-eligible).

The one substantial source of leniency left is prosecutorial discretion. Prosecutors can decline to charge, drop charges, sign cooperation agreements, and recommend mercy in various other ways. Particularly sympathetic defendants may receive mercy as a result. More often, however, prosecutors use these tools as plea-bargaining chips, rewarding guilty pleas and punishing protracted litigation irrespective of the usual grounds for mercy.

This discretion hardly corresponds to the colonial model of transparent, accountable, individual moral evaluation. Unlike executives and juries, prosecutors retain discretion in part because their decisions are hidden from criticism and in part because they are supposedly making expert decisions about ranking priorities. Far from serving substantive justice and mercy, the discretion that remains in the system drives the plea-bargaining machinery.

So, that's all for now on the descriptive account of the historical changes from the colonial through the modern eras. In my last few guest posts this week, I'll offer several suggestions about how to make our punishments more transparent, pro-social, and reintegrative.

Stephanos Bibas, guest-blogging

March 26, 2012 in Clemency and Pardons, Criminal Sentences Alternatives, Guest blogging by Professor Stephanos Bibas, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing | Permalink | Comments (4) | TrackBack

Monday, March 19, 2012

Notable NJ criminal justice feud between US Attorney (appointed by Ds) and federal judge (appointed by Rs)

A helpful reader altered me to this fascinating article from the New York Times reporting on a significant spat between a notable federal judge and the US Attorney in New Jersey, some of which appears to be centered on mandatory minimum sentencing matters.  As my post title hints, this quarrel is especially interesting and telling because the US Attorney is a Democratic appointee complaining about a Republican-appointed judge being too soft:

The judge, William J. Martini, 65, a Republican congressman in the 1990s, has taken to rolling his eyes and barking “sit down” at federal prosecutors while declaring their tactics “grossly offensive.”

The United States attorney, Paul J. Fishman, 55, a Justice Department official under President Bill Clinton, has had his prosecutors call the judge “misguided,” “irrational” and worse in court filings.

The feud centers on two cases, a murder trial and a drug trial. In the murder case, Judge Martini dismissed some charges in a racketeering indictment and limited the evidence that Mr. Fishman’s office could introduce.  In the drug case, Judge Martini refused to impose a mandatory 40-year sentence, which he said was excessive for a street-level trafficker.

Both cases featured Judge Martini steaming about what he labeled overzealous prosecutors, an appeals court overruling him, and Mr. Fishman’s prosecutors claiming that he proceeded to cripple their cases anyway.  Each side has cast itself as fighting for justice and has suggested that the other was out of control, in an important test of the roles of the judiciary and the prosecution.

“We’re talking about a life imprisonment case here, and he should be tried fairly,” Judge Martini said in the murder case, implying that prosecutors did not agree with that fundamental principle of fairness.

But the real cringing among lawyers started when Mr. Fishman’s office asked a federal appeals court not only to overturn the judge’s ruling in the drug case, but also to remove him from the case, saying it seemed that he “could no longer be impartial.”  One removal request would be startling enough, coming from a United States attorney who files all his cases in federal court. But soon, Mr. Fishman’s prosecutors had begun a second written attack on Judge Martini, the likes of which lawyers here said they could not recall.

The prosecutors went after Judge Martini aggressively in the murder case, involving witness-killing charges against a former federal prosecutor turned defense lawyer, Paul W. Bergrin.  They said the judge had displayed an “unwillingness to conduct a fair trial” and should be removed from that case as well.  Judge Martini “had several inexplicable blowups,” Mr. Fishman’s brief added.  The two cases will soon reach the federal appeals court in Philadelphia, and the stakes are high for both men.  Neither would be interviewed for this article.

Judge Martini, who has a reedy voice and a thatch of wiry hair, could be branded by a higher court as biased against prosecutors or, perhaps more damaging in the close-knit legal community in Newark, as an unpredictable bearer of grudges.  Mr. Fishman, compact and intense, could come to be known for crossing the line that often keeps such personal battles private in the courts, infuriating many of the state’s federal judges....  Some lawyers said they were stunned by Mr. Fishman’s move against Judge Martini.  “I don’t think they’re acting rationally,” said Gerald Krovatin, a defense lawyer who has appeared before the judge....

The drug case involved an Irvington heroin trafficker, Douglas Kennedy, who had been convicted on drug and gun charges. Judge Martini railed against the prosecutors for demanding the “draconian” mandatory 40-year sentence, and constructed a legal argument to impose a 15-year sentence instead.

The prosecutors appealed. Judge Martini was overturned by a federal appeals court. He then presented a different legal analysis and again sentenced Mr. Kennedy to 15 years. He said the prosecutors had misused their power in pushing for the longer “sledgehammer” sentence for “street activity” that often got more lenient treatment.

Now the prosecutors want the appeals court to overturn the sentence again and send Mr. Kennedy’s case to another judge. They said they had told Judge Martini that most judges would have imposed the maximum. Judge Martini’s reply: “Well, that’s not Judge Martini.”

March 19, 2012 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

Tuesday, March 06, 2012

ACCA en banc denial splits Fourth Circuit 7-7 and produces sharp opinions

A helpful reader alerted me to the series of notable opinion emerging from the Fourth Circuit today to accompany this order denying rehearing en banc in a case involving application of the Armed Career Criminal Act. The first two paragraphs of a dissent by Judge Davis provides a window into the strong feelings that this case has obviously engendered:

Injustice comes in many forms.  It is insidious.  It chokes persons and their communities alike. It besmirches legislators, prosecutors, and yes, judges, alike.  It undermines public confidence in government and its institutions.  It mocks our national commitment to the ideal of evenhandedness and fairness.  And, when it is the product of an unwarranted and inexplicable deviation from settled standards, it holds hands with iniquity.

I am persuaded that this case presents a profound exemplar of injustice, and I deeply regret the court’s refusal to rehear this case en banc.  I am honored to join in the elegant dissenting opinion of my good colleague, Judge Motz.  Judge Motz conclusively demonstrates that the panel majority in this case has deviated from Supreme Court precedent and thereby inflicted a grievous harm on Appellant Foster and, frankly, on the rule of law.  I offer this additional critique of the panel majority’s handiwork as further illustration of how injustice so infects the outcome of this proceeding.

Obviously, a number of Fourth Circuit judges do not see this matter the same way as Judge Davis, and Judge Wilkinson provides this different perspective in the last two paragraphs of his concurrence in the denial of en banc review:

I recognize that interpreting the ACCA is not always easily accomplished, and I sympathize with the many jurists who have rightly pointed out its imprecise phraseology and interpretive difficulty.  But such challenges come with the territory, and we lack the authority to declare war on statutes we may find distasteful. The dissenters decry the result here as "tragic."  See post at 13 (Motz, J.).  I certainly respect their right to hold this view, but it has no bearing on the legal question before us.  Theirs is a policy disagreement with the ACCA to be taken up with Congress.  If Congress wishes to permit felons to carry certain firearms or to disqualify certain predicate offenses after the passage of time, it can surely do so, but it has created no such exemptions applicable to this case.  Congress had a legitimate purpose in mind when it sought to protect the public from violent acts committed by those with a violent criminal history.  The statute has an awkward name and the means chosen to pursue its purpose have assuredly created headaches for this fine court and others, but that does not confer on us a warrant — constitutional or otherwise — to eviscerate its aims and displace with our own will the democratic legitimacy accorded by our founding document to others.

There are worse fates for a judicial decision than to have it align with the practical virtues of logic and common sense.  The term "objective reasonableness" is much in vogue these days, and properly so. See, e.g., Davis v. United States, 131 S. Ct. 2419 (2011) (holding that a need "to prevent Fourth Amendment law from becoming ossified," id. at 2433, cannot overcome objectively reasonable reliance on the law in force at the time of a search).  Objective reasonableness presupposes that courts do not allow the occasional medieval tendencies present in all professions to separate us so thoroughly from good logic that our decisions drive citizens to rubbing their eyes and scratching their heads. If one were to inquire of an objectively reasonable person on the street whether something named the Sunrise-Sunset Restaurant was a building or structure as opposed to a river craft or railroad car, the response would be "Of course. Why do you ask?"  We ask because the generic approach of modified categorical analysis requires us to, and the Supreme Court has commended to us common sense in answering.  That is precisely what the panel majority has done, and it is why I am pleased to concur in the denial of the petition for rehearing en banc.

March 6, 2012 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Thursday, March 01, 2012

Ninth Circuit to review en banc whether federal courts must respect modified state sentence

As reported in this post from last summer, a split Ninth Circuit ruled in a pair of cases that "given the California state courts’ wide latitude to modify ongoing probationary terms under California state law, the federal district courts in calculating criminal history points for purposes of safety valve eligibility must credit state orders terminating probationary sentences."  The dissenting opinion to this original panel ruling lamented that the "troubling effect of the majority’s holding is that, where convicted federal defendants are facing imposition of federal statutory mandatory minimum sentences in upcoming sentencing proceedings in federal court, it is a state court that will decide whether imposing that mandatory minimum is appropriate."

As reported via this new order, that panel opinion is no longer good law because the Ninth Circuit has decided to take up this matter en banc.  The lead case is US v. Yepez, and it will be interesting both to see what the en banc Ninth Circuit ultimately rules and whether this matter might ultimately grab the Supreme Court's attention.

March 1, 2012 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, February 19, 2012

"Smooth and Bumpy Laws"

One of many joys of participating in the the terrific conference put on by the folks at the University of Miami was having the chance to talk Professor Adam Kolber about his new paper on smooth and bumpy laws. I love the idea and it seems especially significant for sentencing fans, especially in the context of discussing the dramatic impact that severe mandatory sentencing provisions can have on efforts to reduces unwarranted sentencing disparities.   Though I may say more about the specifics of this paper, which shares the title of this post, in some future posts, for now I will just here reprint the abstract:

Modest differences in conduct can lead to wildly different legal outcomes. A reasonably prudent driver who causes an accident owes nothing, but had the driver been just a bit less cautious, he might have owed millions of dollars.  A man who has sex with a woman reasonably believing she consents likely commits no crime, but if he had just a bit more reason to doubt that she consented, he might have been convicted of rape.  While the law must draw difficult lines, it is puzzling why the lines have such startling effects.  After all, we can fine-tune damage awards and the duration of prison sentences anywhere along a spectrum.

A law is “smooth” when a gradual change in conduct leads to a gradual change in the legal outcome. The prior examples are not smooth but “bumpy”: gradual changes in conduct sometimes have no effect on the legal outcome and sometimes have dramatic effects. The law is full of these bumpy relationships between legal inputs and outputs that create hard-to-justify discontinuities.  While considerations like cost and administrability sometimes justify bumpy laws, I show why there are many opportunities to make the law smoother than it is.

In short form, I think it is fair to look at the entire project of sentencing guidelines as an effort to make criminal laws "smoother," and I hope to say more on this front in some future posts.

February 19, 2012 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (5) | TrackBack

Saturday, February 18, 2012

Highlights from DOJ testimony to US Sentencing Commission about federal sentencing concerns

I cannot even hope to summarize all the interesting stories emerging from the US Sentencing Commission hearing on Thursday concerning the operation and potential reform of the modern post-Booker federal sentencing system.  But, in addition to once again urging all federal sentencing fans to review all the written testimony from the hearing (linked via the official agenda here), I can also highlight some notable passages from this written testimony from the Justice Department.  Though the entire testimony ought to be reviewed closely, these passages especially caught my attention:

We are now on a funding trajectory that will result in more federal money spent on imprisonment and less on police, investigators, prosecutors, reentry, and crime prevention.  At the same time, state and local enforcement and corrections budgets are under severe strain.  Taken together, and given the scale of current federal imprisonment penalties, we do not think this trajectory is a good one for continued improvements in public safety.

Prisons are essential for public safety.  But maximizing public safety can be achieved without maximizing prison spending.  And in these budget times, maximizing public safety can only be achieved if we control prison spending.  A proper balance of outlays must be found that allows, on the one hand, for sufficient numbers of investigative agents, prosecutors and judicial personnel to investigate, apprehend, prosecute and adjudicate those who commit federal crimes, and on the other hand, a sentencing policy that achieves public safety correctional goals and justice for victims, the community, and the offender.

This is all relevant to federal sentencing, because the federal prison population remains on an upward path.  Given the budgetary environment, this path will lead to further imbalances in the deployment of justice resources....

One way to reduce prison expenditures is to reduce the total number of prisonyears that inmates serve in the Federal Bureau of Prisons.  To that end, the Department has proposed limited new prison credits for those offenders who behave well in prison and participate in evidence-based programs with proven records of reducing recidivism.  We believe this is one example of a responsible way to control prison spending while also reducing reoffending.... 

We believe mandatory minimums in certain areas are not only reasonable, but are an essential law enforcement tool to increase public safety and provide predictability, certainty and uniformity in sentencing.  At the same time, we recognize that when the severity of mandatory minimum penalties is set inappropriately, consistent application is often lost and just punishment may not be achieved.  The Commission’s report reached the same conclusion.

There are also interesting passages about post-Booker disparities and the role of offender circumstances at sentencing in this DOJ testimony.  And all of the themes in this testimony seem certain to play a role if (and when?) talk of significant sentencing reform (and even a big "Booker fix") moves forward in the US Sentencing Commission and/or in Congress.

Some recent related posts:

February 18, 2012 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8) | TrackBack

Tuesday, February 14, 2012

Canadian judge resisting mandatory sentencing provisions

The Toronto Globe and Mail has this new article, headlined "In challenge to Ottawa, judge refuses to impose mandatory sentence" which provides a northern perspective on the classic concerns about federal judges forced to impose rigid mandatory sentencing terms. Here are excerpts from the piece:

An Ontario Superior Court judge has refused to impose a mandatory three-year sentence on a man caught with a loaded handgun, putting the courts on a collision course with the federal government’s belief in fixed sentences that provide judges with little discretion.

In a decision Monday, Madam Justice Anne Molloy added fuel to a rising sense of judicial anger over mandatory minimum sentences by striking down the compulsory term as cruel and unusual punishment. Instead, she sentenced the defendant, Leroy Smickle, to a year of house arrest. Judge Molloy concluded that Mr. Smickle, a 30-year-old Toronto man with no criminal record, had merely been showing off by striking a “cool” pose over the Internet when police happened to burst into an apartment on March 9, 2009, in search of another man.

The government has adamantly held to the view that mandatory minimums are a necessary restraint on judges who might impose inappropriately lenient sentences for certain offences. That is part of a larger tough-on-crime agenda that includes everything from harsher prison sentences to restricting parole and pardons.

Several months ago, in another major challenge in Ontario Superior Court, a similar sentencing provision was upheld in a firearms case, Regina v. Nur. That, combined with the Smickle ruling, could well result in a high-profile appeal that goes all the way to the Supreme Court of Canada.

Critics argue that a one-size-fits-all sentencing policy inevitably leads to unfair results. In her ruling Monday, Judge Molloy added her voice to those criticisms by saying there are an endless number of scenarios where a fixed sentence would be so cruel as to violate the Charter of Rights....

“In my opinion, a reasonable person knowing the circumstances of this case and the principles underlying both the Charter and the general sentencing provision of the Criminal Code, would consider a three-year sentence to be fundamentally unfair, outrageous, abhorrent and intolerable,” Judge Molloy said....

The judge noted that bad drafting was partially to blame for the legal straitjacket she found herself in. She took issue with a discrepancy in the firearms law, passed in 2008, which allows a judge to impose a more lenient sentence should the Crown choose to proceed summarily with a charge – an option that includes no jury and swifter resolution. She said that if the Crown instead proceeds by indictment, as it did in Mr. Smickle’s case, the minimum sentence automatically becomes three years.

The discrepancy created by the two sentence ranges is so “irrational and arbitrary” that it would shock the community were she to impose the mandatory sentence on Mr. Smickle, Judge Molloy said.

February 14, 2012 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (12) | TrackBack

Friday, February 10, 2012

A judicious perspective on recent federal racial sentencing disparity research

I am extremely plesed and grateful to have received this morning an e-mail from Judge Richard G. Kopf, Senior United States District Judge for the District of Nebraska, with the following comments about some recent posting on this blog (which he kindly gave me permission to post here [with my links inserted]):

Several quick observations about the racial disparity study mentioned in your post entitled “Don’t Blame Judges for Racial Disparity.”  I have now had a chance to read “Racial Disparity in Charging.”

* Kudos to Professors Rehavi and Starr for their hard and good work.

* It would have been helpful to provide data summaries showing raw numbers.

* The significance of this study is modest from a policy perspective because, as the authors indicate, 80% of black men in the study never faced a statutory minimum. (See page 22 the download from SSRN.)  Since we have no idea of the absolute numbers involved of the black men who are said to be impacted, it is very hard gauge whether a policy maker should care.

* The study appears not have included drug and child pornography cases. (Id.)  If so, the missing data is a large impediment to making sensible generalizations.  Such an omission, if true, also calls into question most, if not all, of the statistical conclusions drawn from the study if one is concerned with the whole universe of criminal cases in the federal system.  For example, recognizing that drugs and child pornography comprise a large and high profile segment of the federal criminal universe, one might suppose that black male defendants may face more mandatory minimums charges in drug cases, but one might also suppose that white males face more mandatory minimums in kiddie porn cases.  In any event, one does not know.

* The charging of a mandatory minimum is frequently ameliorated after sentencing by virtue of a Rule 35(b) motion by the government.  So far as I can tell, the study does not try to grapple with that fact.  In some districts with heavy criminal caseloads (like Nebraska), a Rule 35(b) motion, rather than a motion prior to sentencing, is the norm. Studies that don’t address that issue or assume that Rule 35(b) motions will be filed in the same proportion as departure motions prior to sentencing may be quite misleading.

Some recent related posts:

February 10, 2012 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (29) | TrackBack

Thursday, February 09, 2012

"Don't Blame Judges for Racial Disparity"

The title of this post is the headline of this new commentary appearing at The Huffington Post authored by Julie Stewart, the President of Families Against Mandatory Minimums (FAMM). Here is how it starts:

It's almost too much to bear.  After decades of defending some of the most racially discriminatory mandatory minimum sentencing laws ever written, some lawmakers on Capitol Hill and their allies are now saying concern about racial disparity is motivating them to "fix" the federal sentencing guidelines. A new comprehensive report out of the University of Michigan makes clear that these legislative efforts are as misguided, as their proponents' stated concerns are transparently disingenuous.

In 2010, the U.S. Sentencing Commission analyzed recent sentencing data and concluded that the disparity in sentences received by blacks and whites was growing -- particularly after mandatory guidelines became advisory. The Commission warned against using its data to conclude judges were exercising discretion in a racially biased manner. And its warning seemed well-advised when a more rigorous, follow-up study by the University of Pennsylvania contradicted key Sentencing Commission's findings.

Undeterred, those seeking to restore mandatory guidelines insist that judges are to blame for unwarranted racial disparity in sentences.  They seek to pass legislation to reverse the effect of the Supreme Court's decision in United States v. Booker, which held that the federal sentencing guidelines should advise judges, but not bind them.  Thus, to the well-worn charge that federal judges (half of whom, inconveniently, were appointed by Republican presidents and approved overwhelmingly by Republican senators) are soft on crime, we now hear that some of these judges are racists, too.

Mandatory sentencing guidelines, just like mandatory minimum sentencing laws, transfer discretion from judges to prosecutors. Prosecutors, already the most powerful players in the criminal justice system, get to choose not only who to charge and what crimes to charge, but they also get to dictate what sentence a defendant will receive if found guilty since judges have little or no power to disagree. If this extraordinary concentration of power in the hands of one group of federal officials does not convince the public to reject a restoration of mandatory guidelines, the findings of this comprehensive new study should.

"Racial Disparity in Federal Criminal Charging and its Sentencing Consequences" is the understated title of the incredibly important and timely study conducted by Sonja Starr, a law professor from the University of Michigan, and M. Marit Rehavi, an economics professor from the University of British Columbia. The study, the first of its kind, looked at 58,000 federal criminal cases -- at every step where discretion and bias might arise, from arrest through sentencing -- in order to determine the impact of decisions made by prosecutors (rather than judges) on racial disparity in sentence lengths.

In particular, the study focused on how whites and blacks arrested for the same offense were ultimately sentenced. The researchers found significant black-white disparities in the overall severity of initial charges, but saw the most dramatic differences when they examined charges carrying mandatory minimum sentences. Black men were on average more than twice as likely be charged by prosecutors with a crime that carried a mandatory minimum sentence as were white men, even after holding other factors constant.

Those initial charging differences led inexorably to sentencing differences. The gap in sentence lengths between black and white offenders is largely explained by differences in criminal records and in the arrest offense. When you control for those two factors, and others such as gender, age, and district, however, the difference between sentences narrows to almost 10 percent on average. Because 10 percent is still a significant disparity, the authors looked for its cause(s). They found that the gap was caused by differences in the severity of the initial charge. Further, they found that this disparity was largely a result of the prosecutors' decisions to file mandatory minimum charges against blacks more often than against whites, even when the conduct was the same and the mandatory minimum bearing charges could have been filed against whites.

Some recent related posts:

February 9, 2012 in Booker and Fanfan Commentary, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (33) | TrackBack

Tuesday, February 07, 2012

Highlighting how mandatory minimums produce sentencing disparity, not uniformity

This is often claims that mandatory minimum sentencing laws provides a means to limit the impact of judicial sentencing discretion and thereby ensure greater sentencing consistency. Serious student of sentencing policies and practices know, however, that these laws mostly just shift discretion to prosecutors at the charging and bargaining stages and thus can often produce much greater (though often also much more hidden) disparities than judicial sentencing discretion.

This lengthy article appearing in today's Philadelphia Inquirer does a very nice job discussing these realities. The piece is headlined "'Mandatory minimum' laws can mean grossly disparate sentences for gun crimes," and here are excerpts:

Laid off from his job, [Leroy] Smith went to his computer, copied out a list of 7-Eleven stores in and around Philadelphia, grabbed a gun, and started sticking them up.  The clerks and customers were terrified.  Smith fired his revolver once, by accident, and almost shot himself in the leg.

Police caught the former Marine eight weeks after his crimes had started in June 2007. Within hours, he confessed to a dozen robberies that netted him an unimpressive $2,510, plus cigarettes, chips, and soft drinks.

Then Smith made his really, really big mistake.  In 2009, he rejected a plea bargain to serve 25 years and went to trial.  A federal jury convicted him of 10 robberies.

Because Smith had been charged under a "mandatory minimum" law, the judge could not weigh the trial testimony or consider that Smith had no previous convictions.  Automatic penalties written by Congress kicked in.  So Smith was sentenced to two centuries, three decades, and two years.  The 232-year sentence was 10 times the average 2009 federal sentence for murder.

Critics call such extreme disparities a "trial tax," and say it amounts to a penalty for exercising the right to trial by jury.  "He needs to be punished," defense attorney Christopher D. Warren said in court, "but based on my experience, he hasn't done anything which requires him to die in a federal prison."...

The case of the former nightclub bouncer, 41, now in a maximum-security prison in Colorado, is one of an increasingly controversial group of federal cases involving laws that impose mandatory prison terms required by Congress.  Federal prosecutors in Philadelphia make aggressive use of the laws.

Legal scholars and critics say mandatory penalties mean that those prosecutors -- not judges -- end up determining how much prison time a defendant receives by deciding what charges are filed and what deal is offered before a trial.

Smith was arrested by local police and initially charged in state courts, where a conviction would likely have meant a 10- or 20-year sentence. Then the U.S. Attorney's Office picked up his case, charging him under a federal statute that makes it a crime to brandish or use a gun while committing another "crime of violence." That includes armed robberies in which no one is shot or injured.  Legal insiders refer to the law as "924c," its section in the federal criminal code....

Federal prosecution of what are typically state crimes stepped up more than a decade ago in reaction to drug and violent crimes that seem to overwhelm local courts. "I do not think of it as a trial penalty," said U.S. Attorney Zane D. Memeger, who runs the team of 120 federal prosecutors in the Eastern District of Pennsylvania.  Defendants are given a choice, he said, to plead and cooperate, or risk trial and a stiff sentence. "You have to make a decision. It's not my fault if you make a bad decision," Memeger said.  Critics "are not living in these communities where gunfire is rampant," he said....

Congress increased the severity of mandatory minimum sentences in the 1980s and 1990s. One of the few studies to analyze the effect of mandatory-minimum laws was released in October by the U.S. Sentencing Commission.  Its 2010 data showed Philadelphia leading the nation in convictions under the 924c law.  There were pleas or guilty verdicts against 134 defendants. Twenty were convicted of multiple counts, meaning they faced the tough 25-year add-on sentences.  Defendants who pleaded guilty in exchange for having all 924c charges dropped were not counted.

The power of prosecutorial discretion was demonstrated in two other area armed-robbery cases.  In August, three codefendants in a string of eight robberies pleaded guilty and received sentences ranging from three to 18 years.  A fourth man, Devon Brinkley, 24, of Philadelphia, went to trial, was convicted, and was sentenced to 107 years. Defense attorney Vernon Z. Chestnut called the sentence "so disproportionate to the actual crimes that it is shocking to the conscience."

In another area case, two men were indicted by federal prosecutors in 14 armed robberies in Philadelphia at the same time as LaRue Smith was robbing 7-Elevens.  Christopher Sanders, then 22, and Theodore Kelly, then 29, opened negotiations with federal prosecutors.  Details of their case are unavailable because much of their plea agreements and other documents are under seal, an increasingly common practice when plea bargains are involved.  Prosecutors typically say they agree to such stipulations to protect cooperating witnesses.

What is public knowledge is that the two men received the benefit of cooperation. In Sanders' case, prosecutors dropped nine counts of the mandatory-minimum gun law, saving him from a 207-year mandatory sentence.  Instead, he got 20 years.  Kelly's sentence is not recorded in the public court record. Three counts under the gun law were dropped, and the federal Bureau of Prisons says he is due to be released in 2017.

Federal rules say that there should be similar penalties for similar crimes and that prison time should be no longer than necessary for fair punishment.  But that theory runs up against the messy reality of the nation's justice system.  Nationwide, only about 3 percent of federal defendants go to trial, and lawyers acknowledge the justice system would grind to a halt if that figure increased significantly.

Memeger, who took office in 2010, would not talk about individual cases ... [but] has little sympathy for defendants who commit violent crimes and then reject a deal from the government. "You have the ability to make an informed choice, and you blew it. Whose fault is that? Not the government's," he said....

Lifetime incarceration for crimes committed by inmates in their 20s and 30s means that taxpayers will be paying for housing, meals, and medical care for inmates in their 50s, 60s, and 70s and older.  That group will include Brinkley, the stickup artist with the 107-year sentence he received after rejecting a deal to serve 30 years.  His first trial ended in a mistrial, there was a hung jury in the second, and he was convicted in the third.

LaRue Smith, the 7-Eleven robber, admitted the crimes but tried to convince the jury that federal prosecutors had no right to try him for what are ordinarily considered state crimes. Higher courts have long rejected that argument.  At a 2009 hearing, then-U.S. District Judge Bruce W. Kauffman said he was "stunned" by Smith's decision to admit his guilt and insist on a trial.

Christopher Warren, Smith's attorney, said Smith's attitude toward a plea, combined with a long sentence, was not uncommon. "I have encountered this attitude a lot," Warren said. "They think that a 25-year (plea-bargain sentence), their life is effectively over," and go to trial, hoping lightning will strike.

"The reason for not taking it," Smith wrote in an e-mail from prison, "was the fact that I had not murdered or even attempted to murder anyone. . . . and the fact that I was a "FIRST-TIME-OFFENDER."... At his trial, Smith said he only robbed enough stores to pay his rent and provide for his fiancée and young son.

During cross-examination, Assistant U.S. Attorney Michelle Rotella asked Smith if he had the same concern for his victims.  "Did you ask your first victim, the one where you came around the counter and shoved the gun in his stomach . . . if he had kids or a family?"  No, Smith admitted.

Some recent related posts: 

February 7, 2012 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

Monday, January 16, 2012

"Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences"

The title of this post is the title of this important and potent new paper by Professors Marit Rehavi and Sonja Starr, and it seems especially fitting to post it on MLK Day.  Here is the abstract:

This paper assesses the extent to which the large disparities in sentencing outcomes between black and white defendants can be explained by disparities in prosecutors' initial choice of charges, a critical stage overlooked by existing studies of sentencing disparities. To analyze charging, we pair newly constructed measures of charge severity with a newly linked dataset that traces federal cases from the arrest through sentencing.

We find that black arrestees, especially black males, face significantly more severe charges conditional on arrest offense and other observed characteristics.  The disparities in the use of charges that carry mandatory minimum sentences are particularly striking. These disparities appear to be major drivers of sentencing disparity.  Black males face significantly longer sentences than white males do, on average and at almost every decile of the sentence-length distribution, even after conditioning on arrest offense, criminal history, district, and age.  However, the addition of controls for initial charges renders most of these disparities insignificant.  Indeed, the otherwise-unexplained racial disparities at the mean and at most of the deciles can be almost entirely explained by disparities in a single prosecutorial decision: whether to file a charge carrying a mandatory minimum sentence.

January 16, 2012 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (7) | TrackBack

Saturday, December 24, 2011

Ballot proposal to reform California's three-strikes law moves forward

As reported in this local article, which is headlined "Three strikes reform advances: Language OK'd for ballot; signatures needed," a proposal to bring sentencing reform to the California voters in 2012 continues to progress.  Here are the details:

A proposed ballot measure aimed at reforming California's three strikes law has made it past an important hurdle.  Attorney General Kamala Harris' office has approved the bill's language — crafted by Stanford law professors — allowing backers to begin collecting signatures to get the measure on the June 2012 ballot.

Supporters say the measure could end up saving taxpayers $100 million per year in reduced incarceration and prosecution costs.  The proposed measure differs from past efforts to change the law that went into effect after voters approved it in 1994.

Under the three strikes law, offenders who commit serious, violent crimes can have their sentences doubled if convicted of a second "strike" and can receive 25 years to life in prison on their third strike.  The third strike, unlike the first two, does not have to be a serious or violent crime — and it is that aspect that has drawn the most criticism....

The new proposed ballot measure requires that the third strike be a serious, violent crime. The only exception is in the case of convicted murderers, rapists and child molesters, who can still be sentenced to 25 to life for less serious felonies.  The measure would also allow certain inmates convicted under non-serious third strikes to petition for re-sentencing....

More than 8,000 third strikers are serving life sentences in California, and officials estimate that one-quarter of them were convicted of non-serious, nonviolent crimes....

Proponents of the new measure, now officially titled "The Three Strikes Reform Act of 2012," must collect more than 500,000 valid signatures for it to qualify for the June ballot.

I am intrigued, and a bit puzzled, that this article talks about this three-strikes reform proposal appearing on the "June 2012 ballot" rather than on the ballot in November 2012.  This entry at Ballotpedia explains that June 2012 is when California is scheduled to have its presidential primary vote, but it also suggests that the current plan is for most ballot initiative to show up on the November 2012 ballot.  My guess is that this news report is just guessing about when this three-strikes reform proposal would come up for a vote, and I would offer the alternative guess that it is more likely to ultimately appear on the November 2012 ballot.

December 24, 2011 in Mandatory minimum sentencing statutes, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Wednesday, December 21, 2011

"California Prisons Can’t Afford Costly Three Strikes Law"

The title of this post is the headline of this editorial from the Bloomberg editorial board.  Here is how it begins:

The costly mess that is the California prison system has produced inmate strikes, violence and a Supreme Court ruling that its teeming institutions are unconstitutional.  Now it may produce a welcome byproduct: justice.

Last week, the state gave the go-ahead to a proposed ballot initiative to modify California’s “three strikes” law, enabling backers of the initiative to begin gathering the signatures necessary to put it to a vote.  Approved by voters in 1994 after the kidnapping and murder of 12-year-old Polly Klaas by a career criminal, the law reflected the public’s frustration with pervasive and seemingly ever-more-violent crime.

Two dozen other states adopted three-strikes laws as well, but none is as indiscriminately punitive as California’s, which allows any felony to qualify as a third strike.  The state has imposed sentences of 25 years to life for third strikes such as shoplifting a pair of socks and prying open the door to a church food pantry.

Many of the more than 8,000 prisoners serving third-strike sentences in California are hardened, violent criminals who have earned lengthy terms, or life, behind bars.  Their sentences would not be shortened by the ballot initiative.  But more than 3,600 third-strikers have committed crimes that were neither violent nor serious.  In addition, local prosecutors and judges exercise broad discretion on third-strike sentencing, producing vast disparities among the state’s counties.

The original three-strikes law was written too broadly to provide just punishment in the thousands of circumstances it covers.  With the state buckling under the strain of chronic budget deficits and a sagging economy, it is now too expensive to maintain.  According to the state auditor, the cost of imprisoning nonviolent three-strikes offenders for 25 years is $4.8 billion.  (California will spend roughly $10 billion on prisons this year -- more than it spends on its once-renowned higher education system.)  Backers of the initiative say it will save at least tens of millions of dollars a year.

December 21, 2011 in Mandatory minimum sentencing statutes, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, December 16, 2011

"Three men get 1-year sentences for medical marijuana operations"

As helpful reader sent me this local article from Montana, which has the headline that serves as the title of this post.   I am quoting extensively from this piece, in part because there are so many notable elements to this story:

Three men who openly operated medical marijuana businesses in Helena and Great Falls were sentenced in federal court Thursday to a year in prison.

In an emotionally charged hearing, Senior U.S. District Court Judge Charles Lovell handed down the prison terms to Joshua Schultz, Jesse Leland and Jason Burns.  About 75 friends and family members who packed into the federal courthouse in Helena were hoping the judge would take the recommendation of probation made by the men’s attorneys, but also feared that the judge might impose a mandatory minimum sentence of five years or even the maximum of 40 years.

Yet judges are allowed discretion when it comes to sentencing, even with mandatory minimums.  Since the men had admitted their guilt, cooperated with the U.S. Attorney’s Office, had minimal if any criminal records and believed they were in compliance with state laws governing medical marijuana, court officials recommended a guideline sentencing range of 24 to 30 months.

But Lovell lowered the sentences even further, noting that this was a highly unusual case, pitting state against federal laws regarding marijuana.   “The sentencing range that established the guidelines has been, in the judgment of the court, excessive for utilization in this particular case under what I find to be very unusual circumstances,” Lovell said. “While it is true that the law was violated and while it is true that the computation set forward by the U.S. Probation Office complies with the guidelines in an ordinary case, this is not an ordinary case as to each of the three defendants.”...

Still, the 12-month sentences to a federal penitentiary shook the courtroom, with mothers, wives and friends breaking into tears, sighs of “no” ringing out and men dropping their heads into their hands....

In 2004, 62 percent of Montana voters passed an initiative removing criminal penalties under Montana state law related to the medicinal use, possessing and cultivation of marijuana for qualifying patients and registered caregivers.

Few people registered with the state as patients or caregivers until 2009, when the “Ogden Memo” was issued to federal prosecutors by then U.S. Deputy Attorney General David Ogden.  Generally, it said prosecution of marijuana cases in states with medical marijuana laws should be low on the priority list.

But many people who read the memo thought it said the federal government wouldn’t prosecute medical marijuana cases, and the number of caregivers and patients skyrocketed in Montana. Leland, 28, and Burns, 40, formed Queen City Caregivers LLC and registered the business with the Secretary of State’s office.

The men maintained records regarding the eligible patients for which they could manufacture marijuana under the state law and even met with local law enforcement officials, who counted 749 plants growing at their nursery on Westhaven Road in Helena.

The officials determined that Burns and Leland were in compliance with state laws and didn’t issue any citations.   Meanwhile, Schultz, 38, opened Natural Medicine of Great Falls, which operated like a broker, buying and selling marijuana among caregivers.

“As (Schultz’s) character letters attest, he is a good family man and a productive member of the community,” defense attorney Michael Donahoe wrote on behalf of his client in court documents. “Absent the government’s publication of the Ogden Memo, there is no evidence to support the conclusion that (Schultz) would have engaged in the business of selling marijuana. “… And under the Ogden Memo it was more than reasonable for (Schultz) to assume that he would not be targeted for federal prosecution, so long as he was making a good faith effort to remain in compliance with Montana’s medical marijuana laws.”

But in March, the federal government carried out dozens of raids in Montana, including at the three men’s businesses.  They were arrested and jailed on about 25 charges each including manufacturing and distributing marijuana and money laundering.

In court Thursday, Assistant U.S. Attorney Joseph Thaggard reiterated that the Ogden Memo only spoke about prioritization of crimes, and federal prosecutors in Montana felt a need to corral the state’s exploding medical marijuana industry.  He added that the memo also said people wouldn’t be prosecuted when there was “clear and unambiguous compliance” with state law, and the three men didn’t fall into that category....

“The memo didn’t say sort of comply or try to comply or attempt to comply … and the use and distribution of medical marijuana is still against federal law,” Thaggard said. “So it’s a little disingenuous for these defendants to come forward saying they didn’t believe they would be fair game for prosecution.”

The court received dozens of letters from supporters of all three men, who noted that they were upstanding fathers, uncles and friends, as well as caring individuals who were only trying to help people who were ill.  Thaggard noted that while that may be true, the men also made quite a bit of money — around $1.3 million by the government’s accounting.

Burns, who also owns a construction business in Helena, pleaded guilty in September to growing marijuana and money laundering.  Leland pleaded guilty to manufacturing marijuana and Schultz pleaded guilty to distribution of marijuana. In exchange for the guilty pleas, the other charges were dropped Thursday and the defendants agreed not to appeal the sentences.

Leland and Burns each forfeited $454,666 in a bank account that was seized and Schultz paid the government $110,000 prior to the sentencing. He also forfeited a 2001 Mercedes Benz.  All three men were set free Thursday, but will have to report to federal prison as soon as they’re ordered to begin their sentences. After the release, Burns will be on supervised probation for three years and Leland and Schultz will be supervised for four years.

Beyond lots of other reactions to this prosecution and sentencing, I am uniquely disappointed to read that "the defendants agreed not to appeal the sentences."  I can think of a number of important constitutional and statutory arguments that might well be made (and that I surely wish would be made) to the Ninth Circuit in an effort to overturn the prosecutions and especially the prison sentences given to these three (upstanding?) Montana businessmen.  

Because federal prosecutors are (justifiably) afraid of what might happen on appeal of a case like this (both in terms of PR and in terms of a legal ruling), I guess I am not surprised to hear that the feds sought a waiver of appeal in the plea deal.  And, I have little doubt that the prosecutors were able to used the threat of an potentially applicable mandatory minimum sentence of five years to secure such a plea term.  I sincerely hope that, if the language of the appeal waiver has any limits, these defendants will consider trying to appeal at least their federal prison term (and I will here already offer to help on any such appeal to the Ninth Circuit pro bono).

December 16, 2011 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (39) | TrackBack