Thursday, July 31, 2014

Sixth Circuit panel finds one-day prison sentence unreasonable for white-collar defendant

The Sixth Circuit today has reinforced its reputation as one of the circuits most likely to declare a below-guideline sentence unreasonable with a unanimous panel ruling in US v. Musgrave, No. 13-3872 (6th Cir. July 31, 2014) (available here).  Because post-Booker appellate sentence reversals are rare, this relatively short opinion is a must read for everyone who following federal sentencing law and policy closely.  In addition, at a time when debates over white-collar sentencing rules and practices remain hot, all those who follow white-collar crime and punishment will want to be sure to check out this opinion as well.

Here is how the Musgrave opinion starts and finishes:

A jury found Paul Musgrave guilty of one count of conspiracy to commit wire and bank fraud and to make false statements to a financial institution; two counts of wire fraud; and one count of bank fraud.  The district court sentenced him to one day of imprisonment with credit for the day of processing — a downward variance from his Guidelines range of 57 to 71 months’ imprisonment and below the government’s recommendation of 30 months’ imprisonment.  On appeal, the government asserts that Musgrave’s one-day sentence is substantively unreasonable.  For the following reasons, we vacate the district court’s sentence and remand for resentencing....

A defendant’s sentence must reflect the seriousness of the offense, promote respect for the law, and provide just punishment. 18 U.S.C. § 3553(a)(2).  In imposing a sentence, the district court must explain, based on permissible considerations, how its sentence “‘meshe[s] with Congress’s own view of the crimes’ seriousness.’” United States v. Peppel, 707 F.3d 627, 635 (6th Cir. 2013) (quoting United States v. Davis, 537 F.3d 611, 617 (6th Cir. 2008)).  The collateral consequences of the defendant’s prosecution and conviction are “impermissible factors” when fashioning a sentence that complies with this directive.  Peppel, 707 F.3d at 636.  A district court’s reliance on these factors “does nothing to show that [the defendant’s] sentence reflects the seriousness of his offense. Were it otherwise, these sorts of consequences— particularly ones related to a defendant’s humiliation before his community, neighbors, and friends—would tend to support shorter sentences in cases with defendants from privileged backgrounds, who might have more to lose along these lines.” United States v. Bistline, 665 F.3d 758, 765–66 (6th Cir. 2012).  Thus, when a district court varies downward on the basis of the collateral consequences of the defendant’s prosecution and conviction, the defendant’s sentence will not reflect the seriousness of the offense, nor will it provide just punishment.  See Peppel, 707 F.3d at 636; Bistline, 665 F.3d at 765–66.

Impermissible considerations permeated the district court’s justification for Musgrave’s sentence.  In imposing a sentence of one day with credit for the day of processing, the district court relied heavily on the fact that Musgrave had already “been punished extraordinarily” by four years of legal proceedings, legal fees, the likely loss of his CPA license, and felony convictions that would follow him for the rest of his life.  “[N]one of these things are [his] sentence.  Nor are they consequences of his sentence”; a diminished sentence based on considerations does not reflect the seriousness of his offense or effect just punishment.  Bistline, 665 F.3d at 765.  On remand, the district court must sentence Musgrave without considering these factors....

In the context of white-collar crime, we have emphasized that “it is hard to see how a one-day sentence” would “serve the goals of societal deterrence.” Davis, 537 F.3d at 617.  “‘Because economic and fraud-based crimes are more rational, cool, and calculated than sudden crimes of passion or opportunity, these crimes are prime candidates for general deterrence.’” Peppel, 707 F.3d at 637 (quoting United States v. Martin, 455 F.3d 1227, 1240 (11th Cir. 2006)); see also Davis, 537 F.3d at 617.

Consideration of general deterrence is particularly important where the district court varies substantially from the Guidelines.  See, e.g., Aleo, 681 F.3d at 300 (explaining that the greater the variance, the more compelling the justification based on the § 3553(a) factors must be).  This is even truer here, given that the crimes of which Musgrave was convicted are especially susceptible to general deterrence and the fact that there is a general policy favoring incarceration for these crimes.  Indeed, “[o]ne of the central reasons for creating the sentencing guidelines was to ensure stiffer penalties for white-collar crimes and to eliminate disparities between white-collar sentences and sentences for other crimes.” Davis, 537 F.3d at 617.  More importantly, Congress understood white-collar criminals to be deserving of some period of incarceration, as evidenced by its prohibition on probationary sentences in this context.  Id.  Where a district court’s view of a particular crime’s seriousness appears at odds with that of Congress and the Sentencing Commission, we expect that it will explain how its sentence nevertheless affords adequate general deterrence.  Id.; Camiscione, 591 F.3d at 834.  The district court failed to do so here.

Musgrave must be resentenced.  The district court relied on impermissible considerations and failed to address adequately how what amounted to a non-custodial sentence afforded adequate general deterrence in this context. Nevertheless, it bears repeating that “[w]hile appellate courts retain responsibility for identifying proper and improper sentencing considerations after Booker, it is not our task to impose sentences in the first instance or to second guess the individualized sentencing discretion of the district court when it appropriately relies on the § 3553(a) factors.”  Davis, 537 F.3d at 618 (citing United States v. Vonner, 516 F.3d 382, 392 (6th Cir. 2008) (en banc)). The district court’s sentence is vacated, and the case is remanded for the district court, in its discretion, to impose a sentence sufficient but not greater than necessary to serve the § 3553(a) factors.

I view the main message of this Musgrave case, along with other cited cases in which the Sixth Circuit has reversed similar one-day sentences on appeal, that the Sixth Circuit generally believe that at least a short period of incarceration is nearly essential for any serious crime for which the guidelines recommend years of incarceration even if the defendant is a relatively sympathetic first offender not likely to re-offend.

July 31, 2014 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (0) | TrackBack

"Attorney General Eric Holder to Oppose Data-Driven Sentencing"

The title of this post is the headline of this important new article from Time detailing that the Attorney General is formally coming out against some of the data-driven, risk-based sentencing reforms based on concerns about the potential impact on equal justice.  Here are highlights from this article (with more to follow in coming posts):

Citing concerns about equal justice in sentencing, Attorney General Eric Holder has decided to oppose certain statistical tools used in determining jail time, putting the Obama Administration at odds with a popular and increasingly effective method for managing prison populations.  Holder laid out his position in an interview with TIME on Tuesday and will call for a review of the issue in his annual report to the U.S. Sentencing Commission Thursday, Justice department officials familiar with the report say.

Over the past 10 years, states have increasingly used large databases of information about criminals to identify dozens of risk factors associated with those who continue to commit crimes, like prior convictions, hostility to law enforcement and substance abuse. Those factors are then weighted and used to rank criminals as being a high, medium or low risk to offend again.  Judges, corrections officials and parole officers in turn use those rankings to help determine how long a convict should spend in jail.

Holder says if such rankings are used broadly, they could have a disparate and adverse impact on the poor, on socially disadvantaged offenders, and on minorities.  “I’m really concerned that this could lead us back to a place we don’t want to go,” Holder said on Tuesday.

Virtually every state has used such risk assessments to varying degrees over the past decade, and many have made them mandatory for sentencing and corrections as a way to reduce soaring prison populations, cut recidivism and save money.  But the federal government has yet to require them for the more than 200,000 inmates in its prisons. Bipartisan legislation requiring risk assessments is moving through Congress and appears likely to reach the President’s desk for signature later this year.

Using background information like educational levels and employment history in the sentencing phase of a trial, Holder told TIME, will benefit “those on the white collar side who may have advanced degrees and who may have done greater societal harm — if you pull back a little bit — than somebody who has not completed a master’s degree, doesn’t have a law degree, is not a doctor.”

Holder says using static factors from a criminal’s background could perpetuate racial bias in a system that already delivers 20% longer sentences for young black men than for other offenders.  Holder supports assessments that are based on behavioral risk factors that inmates can amend, like drug addiction or negative attitudes about the law.  And he supports in-prison programs — or back-end assessments — as long as all convicts, including high-risk ones, get the chance to reduce their prison time.

But supporters of the broad use of data in criminal-justice reform — and there are many — say Holder’s approach won’t work.  “If you wait until the back end, it becomes exponentially harder to solve the problem,” says former New Jersey attorney general Anne Milgram, who is now at the nonprofit Laura and John Arnold Foundation, where she is building risk-assessment tools for law enforcement.  For example, prior convictions and the age of first arrest are among the most power­ful risk factors for reoffending and should be used to help accurately determine appropriate prison time, experts say.

And data-driven risk assessments are just part of the overall process of determining the lengths of time convicts spend in prison, supporters argue.  Professor Edward Latessa, who consulted for Congress on the pending federal legislation and has produced broad studies showing the effectiveness of risk assessment in corrections, says concerns about disparity are overblown.  “Bernie Madoff may score low risk, but we’re never letting him out,” Latessa says.

Another reason Holder may have a hard time persuading states of his concerns is that data-driven corrections have been good for the bottom line.  Arkansas’s 2011 Public Safety Improvement Act, which requires risk assessments in corrections, is projected to help save the state $875 million through 2020, while similar reforms in Kentucky are projected to save it $422 million over 10 years, according to the Pew Center on the States. Rhode Island has seen its prison population drop 19% in the past five years, thanks in part to risk-assessment programs, according to the state’s director of corrections, A.T. Wall....

Holder says he wants to ensure the bills that are moving through Congress account for potential social, economic and racial disparities in sentencing.  “Our hope would be to work with any of the Senators or Congressmen who are involved and who have introduced bills here so that we get to a place we ought to be,” Holder said.

July 31, 2014 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, July 27, 2014

Another effective review of how Obamacare could be "an antidote to crime"

Regular readers likely recall a number of posts in which I highlighted ways in which the Affordable Care Act (aka Obamacare) could have a significant impact on a number of criminal justice realities in the years to come.  A helpful readers alerted me to this notable new Christian Science Monitor article on this topic headlined "Obamacare for ex-inmates: Is health insurance an antidote to crime?".  Here are excerpts: 

In the enduring quest to discover what can prevent criminals from reoffending, a new holy grail is emerging: health-care services.

Excitement is stirring inside the justice system, as corrections officials work to link inmates who are leaving custody with health services in their communities, courtesy of President Obama’s Affordable Care Act (ACA). The idea is to enroll thousands of ex-offenders in Medicaid, the federal-state health insurance program for the poor, thus making them eligible for treatment for mental health issues, substance abuse, and chronic medical problems that most have never before consistently received on the outside.

The hoped-for result: a reduction in the share of those who reoffend, and a drop in incarceration costs related to securing public safety. “This is a huge opportunity,” says Kamala Mallik-Kane, who studies correctional systems, inmates, and health policy at the nonprofit Urban Institute. “The unprecedented step of connecting these newly eligible people to health insurance has incredible potential to change the trajectory of inmates to reintegrate back into society and not back into the justice system.”...

[But] it is much too soon to know if the excitement among justice experts is justified. No state or county expects to see, this early, a sea change in its correctional systems, recidivism rates, or health-care costs. And it’s not known, for instance, at what rate ex-offenders who enroll in Medicaid actually use health services in their communities.

Many experts, moreover, are wary of the notion that health reform and access to Medicaid for formerly imprisoned men can truly transform America’s criminal-justice system. “Medicaid enrollment for inmates is not the silver bullet,” says Paul Howard, a senior fellow at the Manhattan Institute, a conservative think tank and director of its Center for Medical Progress.

He suggests that Medicaid, a $265 billion federal expenditure in 2013, is not yielding adequate results for the cost – and that it’s time to take “a long and hard look” before expanding it to serve even more people. “Extending those benefits to a historically transient and difficult population with a whole host of social-issues challenges will not change their approach to health care or [their] behaviors,” warns Mr. Howard.

Enthusiasts for Medicaid sign-ups for ex-inmates build their hopes on research indicating that recidivism rates fall when prisoners and ex-prisoners receive mental health treatment. A 2010 study by David Mancuso of the Washington State Institute of Public Policy, a state-based policy think tank, found that for state residents enrolled in Medicaid and receiving substance abuse treatment, arrest rates dropped by as much as 33 percent compared with rates for those who didn’t receive treatment, leading to lower correctional costs and better public safety.

In any case, about 8 million prisoners leave America’s prisons and jails every year. Since the rollout of Obamacare last October, ex-offenders account for about 1 million of the 6 million new Medicaid beneficiaries enrolled in expansion states.

While incarcerated, prisoners have a constitutionally protected right to health care, with costs usually covered by the state (even if they have their own health insurance). Typically, privately contracted health companies or public hospital systems provide such care. Most jails and prisons have on-site clinics – in some cases, even full-service hospitals.

While some say the quality of prisoner care could be better, it’s more robust than what usually greets indigent ex-inmates on the outside. In many states, inmates who’ve been diagnosed with chronic conditions receive a small supply of medication upon release, but often no medical provider or insurance for refills – creating a gap in their health care. Correctional health professionals across the United States share stories of inmates who get rearrested so they can get medication....

Substance abuse or mental health issues afflict the vast majority of prison inmates in the US. More than 1 million incarcerated people suffer from mental illness, the Department of Justice estimated in 2006 – almost half the total in custody. As for substance abuse, the picture is even bleaker, affecting between 60 and 80 percent of all inmates, found a 2013 report of the US Office of National Drug Control Policy.

The strongest case study might be Connecticut, which has one of the most comprehensive approaches to Medicaid enrollment in the nation. The state runs all its jails and prisons, making change easier to administer uniformly. It has four jails and 11 prisons, holding almost 17,000 inmates. Here, a person making less than about $15,800 a year qualifies for Medicaid.

The link is obvious between greater access to health care and lower recidivism rates, say state officials. “If you don’t feel well, you don’t act well,” says James Dzurenda, state correction commissioner. “The Affordable Care Act gives our released offenders access to health care, which is critical to release offenders back into the community safely, increase public safety, and ultimately reduce victimization.”...

Last year, Connecticut processed 7,794 Medicaid applications from state criminal-justice agencies. In the same period, state prison population and arrest rates dropped by about 3.4 percent, according to reports from the state Office of Policy and Management....

Enrolling in Medicaid does not guarantee an ex-inmate will instantly turn over a new leaf, of course. Moreover, the cumulative effect promises to be difficult to tease out: None of the programs now in place track inmates after they reenter the community, so there is no way to tell if ex-offenders are actually using the health insurance. Often, ex-inmates stick with their former habits of heading directly to emergency rooms for care, driving up public health costs, according to a recent study of former prisoners in Rhode Island.

Some related prior posts:

July 27, 2014 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (6) | TrackBack

"Grace Notes: A Case for Making Mitigation the Heart of Noncapital Sentencing"

The title of this post is the title of this notable new article by Miriam Gohara that I just came across via SSRN.  Here is the abstract:

Investigation and presentation of comprehensive life history mitigation is at the heart of successful capital litigation that has contributed to a steady decline in capital sentences. Noncapital incarceration rates have also begun to level, and various legal developments have signaled a re-ascent of more individualized noncapital sentencing proceedings.  This return to individualized sentencing invites consideration of whether life history mitigation may, as it has in capital cases, hasten a turn away from mostly retributive punishment resulting in disproportionately harsh noncapital sentencing to a more merciful rehabilitative approach.  The robust capital mitigation practice required by today's prevailing professional capital defense norms developed following the Supreme Court's Eighth Amendment doctrine requiring individualized capital sentences that account for the unique characteristics of the offender. No such doctrinal imperative applies to noncapital sentencing. As a result, professional noncapital defense sentencing standards, while providing a general basis for various aspects of sentencing advocacy, remain relatively underdeveloped, though the same bases for ameliorating punishment in capital cases should apply with equal practical force to noncapital cases.

At the same time, institutional and doctrinal barriers -- including high caseloads and lack of resources, the prevalence of plea bargaining, and the Supreme Court's “death is different” precedent -- present formidable challenges to routine presentation of life history mitigation in noncapital cases.  Therefore, the regular presentation of life history mitigation, lacking a constitutional mandate and operating in a structure different from that of capital sentencing, will depend in the immediate term on the initiative of criminal defense lawyers with the will to consistently present it in noncapital cases.  A more widespread adoption of comprehensive noncapital mitigation practice will benefit individual clients, change the expectations of sentencing courts concerning what information they should have available before ordering punishment, and provide insight into the social causes of various types of crimes.  Over time, as it has in capital cases, familiarity with the mitigating force of social history may serve as a powerful basis for empathy and amelioration of overly punitive noncapital punishment.

July 27, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, July 18, 2014

Split Iowa Supreme Court declares all mandatory juve sentencing terms violate state constitution

Thanks to a helpful reader, I learned this afternoon that the Iowa Supreme Court today declared unconstitutional pursuant to the Iowa Constitution the imposition of any and all mandatory terms of imprisonment on juvenile offenders.  The majority ruling in Iowa v. Lyle, No. 11–1339 (Iowa July 18, 2014)  

In this appeal, a prison inmate who committed the crime of robbery in the second degree as a juvenile and was prosecuted as an adult challenges the constitutionality of a sentencing statute that required the imposition of a mandatory seven-year minimum sentence of imprisonment.  The inmate was in high school at the time of the crime, which involved a brief altercation outside the high school with another student that ended when the inmate took a small plastic bag containing marijuana from the student.  He claims the sentencing statute constitutes cruel and unusual punishment in violation of the State and Federal Constitutions when applied to all juveniles prosecuted as adults because the mandatory sentence failed to permit the court to consider any circumstances based on his attributes of youth or the circumstances of his conduct in mitigation of punishment.  For the reasons expressed below, we hold a statute mandating a sentence of incarceration in a prison for juvenile offenders with no opportunity for parole until a minimum period of time has been served is unconstitutional under article I, section 17 of the Iowa Constitution. Accordingly, we vacate the sentence and remand the case to the district court for resentencing. Importantly, we do not hold that juvenile offenders cannot be sentenced to imprisonment for their criminal acts.  We do not hold juvenile offenders cannot be sentenced to a minimum term of imprisonment.  We only hold juvenile offenders cannot be mandatorily sentenced under a mandatory minimum sentencing scheme.

The majority opinion supporting this ruling runs nearly 50 pages and, unsurprisingly, has a lot to say about the US Supreme Court's recent Eighth Amendment work in Graham and Miller. In addition, two forceful dissents follow the majority's opinion in Lyle, and here is the heart of one of the dissenting opinions:

By holding Lyle’s seven-year mandatory minimum sentence for his violent felony is cruel and unusual punishment and unconstitutional under article I, section 17 of the Iowa Constitution, rather than under the Eighth Amendment, the majority evades review by the United States Supreme Court.  As Justice Zager observes, no other appellate court in the country has gone this far. Our court stands alone in taking away the power of our elected legislators to require even a seven-year mandatory sentence for a violent felony committed by a seventeen-year-old.  Will the majority stop here?  Under the majority’s reasoning, if the teen brain is still evolving, what about nineteen-year olds?  If the brain is still maturing into the mid-20s, why not prohibit mandatory minimum sentences for any offender under age 26?  As judges, we do not have a monopoly on wisdom.  Our legislators raise teenagers too.  Courts traditionally give broad deference to legislative sentencing policy judgments. See State v. Oliver, 812 N.W.2d 636, 650 (Iowa 2012) (“We give the legislature deference because ‘[l]egislative judgments are generally regarded as the most reliable objective indicators of community standards for purposes of determining whether a punishment is cruel and unusual.’ ” (quoting Bruegger, 773 N.W.2d at 873)). Why not defer today?

July 18, 2014 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, July 16, 2014

"Volunteers for Execution: Directions for Further Research into Grief, Culpability, and Legal Structures"

The title of this post is the title of this notable paper I just came across via SSRN authored by Meredith Martin Rountree.  Here is the abstract:

About 11% of those executed in the United States are death-sentenced prisoners who sought their own execution.  These prisoners are commonly called “volunteers,” and they succeed in hastening execution by waiving their right to appeal their conviction and sentence. Certain interpretations dominate.  Those who oppose a condemned prisoner’s request for execution often cite the prisoner’s history of mental instability and frame the prisoner’s decision as a product of suicidal depression.  Related to this narrative is one that links death row conditions to the prisoner’s decision to hasten death.  Conditions, in this account, contribute to the decision to abandon appeals by wearing the prisoner down to the point that he loses the will to live, or by contributing to “death row syndrome,” an evolving (and controversial) psychiatric diagnosis describing a mental condition that some prisoners develop as a result of living under a death sentence in highly socially isolating and stark conditions of confinement.  Other narratives focus on ideas of rational choice and personal autonomy.  This account emphasizes prisoners’ desire to control their own destiny and the civic virtue of respecting autonomy and choice, even for the least among us.

The empirical support for these explanations is sparse, and this article emerges from a larger effort to test the hypothesis that prisoners who seek execution resemble those who take their own lives in prison.  The prison suicide literature has identified certain characteristics — such as race, sex, age, mental illness, and prison conditions — as increasing the risk of suicide behind bars.  My research on Texas volunteers generally suggests many, but not all, of those traits characterize that volunteer population as well. This article focuses on findings that point to areas for future research not only on volunteers but also on larger questions of processes of hopelessness and culpability among criminal offenders, and how the criminal justice system may influence life-ending decisions. 

July 16, 2014 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, July 14, 2014

"Moneyball Sentencing"

The title of this post is the great title of this interesting-looking new article by Dawinder Sidhu now available via SSRN. Here is the abstract:

Sentencing is a backward- and forward-looking enterprise. That is, sentencing is informed by an individual’s past conduct as well as by the criminal justice system’s prediction of the individual’s future criminal conduct.  Increasingly, the criminal justice system is making these predictions on an actuarial basis, computing the individual’s risk of recidivism according to the rates of recidivism for people possessing the same group characteristics (e.g., race, sex, socio-economic status, education).  The sentencing community is drawn to this statistical technique because it purportedly distinguishes with greater accuracy the high-risk from the low-risk, and thereby allows for a more efficient allocation of sentencing resources, reserving incarceration for the truly dangerous and saving the low-risk from needless penal attention.

Despite these asserted benefits, risk-assessment tools are exogenous to the theories of punishment, the very foundation for sentencing in Anglo-American jurisprudence.  This Article reviews the legality and propriety of actuarial predictive instruments, using these theories and governing constitutional and statutory law as the touchstone for this analysis.  This Article then applies these normative and legal principles to seventeen major characteristics that may comprise an offender’s composite risk profile.  It argues that risk-assessment instruments are problematic for three reasons: they include characteristics that are prohibited by constitutional and statutory law; subject the individual to punishment for characteristics over which the individual has no meaningful control; and presume that the individual is a static entity predisposed, if not predetermined, to recidivate, thereby undermining individual agency and betting against the individual’s ability to beat the odds.

July 14, 2014 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (3) | TrackBack

Third Circuit approves forcible medication to enable federal sentencing

While I was on the road last week, the Third Circuit issued an interesting opinion in US v. Cruz, No. 13-4378 (3d Cir. July 10, 2014) (available here), which affirmed a district court's decision to forcible medicate a defendant in order to facilitate his federal sentencing. This opening paragraph and another section from the heart of the opinion provides highlights of the unanimous panel ruling:

We here confront an issue of first impression: whether the Government, pursuant to the Supreme Court’s decision in United States v. Sell, 539 U.S. 166 (2003), can have a sufficiently important interest in forcibly medicating a defendant to restore his mental competency and render him fit to proceed with sentencing.  Under the facts presented in this case, we answer that question in the affirmative and we will affirm....

[I]n Booker the Supreme Court highlighted governmental interests that are inherent in sentencing proceedings.  It repeatedly emphasized that the sentencing scheme put in place by the Sentencing Act and Sentencing Guidelines “diminishes sentencing disparity” and “move[s] the sentencing system in the direction of increased uniformity.” Booker, 543 U.S. at 250, 253.  It also repeatedly emphasized that sentencing uniformity depends in critical part on the relationship between punishment and “the real conduct that underlies the crime of conviction.” Id. at 250; see id. at 251 (“Judges have long looked to real conduct when sentencing,” and often rely on “a presentence report, prepared by a probation officer, for information (often unavailable until after the trial) relevant to the manner in which the convicted offender committed the crime of conviction.”); id. at 253-54 (“[I]ncreased uniformity . . . does not consist simply of similar sentences for those convicted of violations of the same statute . . . . It consists, more importantly, of similar relationships between sentences and real conduct, relationships that Congress’ [sic] sentencing statues helped to advance[.]”).

The Government cannot achieve the sort of uniformity contemplated in Booker without formal sentencing proceedings.  A criminal defendant enjoys the right to allocute at sentencing, and he also enjoys the right to object to the PSR, to argue for favorable sentencing variances and downward departures from the Sentencing Guidelines, and to oppose any arguments favoring upward variances or departures from the Guidelines. Those rights, which to a great degree reflect the defendant’s “real conduct,” id. at 250, necessarily require the defendant to both actively participate in sentencing proceedings and inform his attorney’s actions.  Because an incompetent defendant is presumed unable to take those actions, the Government maintains an important interest in restoring his mental competency and enabling him to do so.

July 14, 2014 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

Are federal drug sentences for mules now too short?

Drugs and dogsThe question in the title of this post is prompted by this notable and fascinating new article in the New York Times headlined "Second Thoughts on Lighter Sentences for Drug Smugglers." Here are excerpts:

For years, a steady parade of drug smugglers have tried all sorts of ways to ferry contraband into the United States through Kennedy International Airport in Queens, posing a challenge not only to Customs and Border Protection officers, but also to federal prosecutors.

To avoid clogging up the court, the United States attorney’s office in Brooklyn has embraced a strategic approach that allows couriers to plead guilty and offer information in return for lighter sentences.  The policy reflected a view among many prosecutors that the mandatory minimum sentences for drug-related offenses — which require prison terms of five years and higher in these smuggling cases — were too harsh on defendants who were typically nonviolent and disadvantaged.

But in recent months, changes in drug sentencing have served to further lower punishments for these couriers.  A year ago, drug couriers regularly faced three years in prison; now they might face guidelines starting at only a few months, or no prison time at all.

The changes are raising questions of whether the pendulum has swung too far.  Some prosecutors say that couriers have little to no incentive to cooperate anymore.  Border patrol officials grumble that they are working to catch smugglers, only to have them face little punishment.  And judges who once denounced the harsh sentencing guidelines are now having second thoughts....

The debate over what constitutes a fair sentence for drug crimes has persisted for decades.  Critics — many of them judges in this court — have said that sentencing guidelines and mandatory minimum punishments had become hugely problematic. Nonviolent drug offenders, like couriers or people selling marijuana on the street, could face longer guideline sentences than an underground gun dealer.  And until recently, possession of five grams of crack warranted a minimum five-year sentence.  To get the same sentence for powdered cocaine possession, 500 grams would be required.

Various reforms have been instituted to address the inequities in sentencing.  In 1994, a “safety valve” provision allowed nonviolent first offenders on drugs — which describes most couriers — to avoid mandatory minimums if they admitted to all prior criminal conduct.  And in 2010, Congress passed legislation toward balancing the crack versus cocaine disparity....

In August, the United States attorney general, Eric H. Holder Jr., ordered prosecutors nationwide to charge couriers and other low-level drug offenders who met certain criteria in a way that did not result in mandatory-minimum sentences.  (Guideline sentences must still be considered, but they are not mandatory.)

Then, in April, the United States Sentencing Commission voted to reduce sentencing guidelines for drug crimes by two points, or several months.  The reduced guidelines go into effect in November, pending congressional approval, but prosecutors in many districts have agreed to apply them now.

The changes made things more difficult in Brooklyn, where prosecutors still wanted to give low-level couriers an incentive to avoid trials and to assist in prosecutions against larger drug distributors. Believing they had to further sweeten the deal, prosecutors agreed to give an additional four points off those reduced sentences for couriers who agreed to cooperate.

As a result, drug-courier defendants can now face sentencing guidelines that suggest no prison time.

My first reaction to this piece is to suggest that it's a nice change of pace for federal judges to now view at least some federal sentencing guidelines to be too lenient and that any problems this creates can and should be addressed through judicial discretion to sentence above the guidelines, case-by-case, as needed and appropriate.  But I imagine this viewpoint is not very satisfying for federal prosecutors and investigators who depend on the threat of severe sentences to get mules to cooperate to their satisfaction.

For additional intriguing and diverse reactions to these intriguing new drug sentencing realities, check out these posts from other informed bloggers:

July 14, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Thursday, July 10, 2014

Split Michigan Supreme Court rejects retroactivity of Miller for hundreds of juve lifers

MichThough I am on the road and behind on a number of blogging fronts, a number of helpful readers made sure I did not miss an important state Miller application from Michigan.  This local article, headlined "Michigan Supreme Court denies parole hearings to juvenile lifers," provides these basics:

The Michigan Supreme Court ruled 4-3 Tuesday that juveniles given automatic life-without-parole sentences aren’t eligible for parole — even though the U.S. Supreme Court decided in 2012 that such sentences were unconstitutional. The ruling involved three of what some estimates say are at least 350 Michigan “juvenile lifers” — the highest number in any state — who are seeking parole hearings....

A four-justice majority, in a decision written by Justice Stephen Markman, said the 2012 U.S. Supreme Court ruling does not apply retroactively to these Michigan inmates, under either federal or state court precedents.

Attorney General Bill Schuette, who has argued that parole for any of the juvenile lifers would be disrespectful to murder victims and heart-wrenching to their families, hailed the decision. “Today the Michigan Supreme Court upheld the rights of crime victims and their families,” he said....

Kary Moss, executive director of the American Civil Liberties Union of Michigan, called the decision “heartbreaking.”

“Here we have a practice that the U.S. Supreme Court has said violates the Eighth Amendment as cruel and unusual punishment ... yet the Michigan Supreme Court is unwilling ever to give the 350 juvenile lifers currently in Michigan’s prisons a parole hearing in their lifetime,” Moss said. She said the ACLU is reviewing its options for a further federal legal challenge. “We are not letting this issue drop,” Moss said....

Neither the Eighth Amendment nor the state Constitution “categorically bars the imposition of a sentence of life without parole on a juvenile homicide offender,” the court’s majority said.

Justices Mary Beth Kelly, Bridget Mary McCormack and Michael Cavanagh dissented and said the court should have ruled in favor of parole hearings. They noted that state lawmakers this year passed a juvenile sentencing law that “significantly altered Michigan’s sentencing scheme for juvenile offenders convicted of crimes that had previously carried a sentence of life without parole.”

Under the new law, judges can impose 40- to 60-year sentences in cases where prosecutors don’t ask for life-without-parole for murder and other heinous crimes....

The Michigan Catholic Conference said the decision is disappointing. “We call upon the Legislature to pass a measure that will allow for juveniles sentenced to a life term before the (2012 U.S. Supreme Court) decision to have the opportunity for a parole hearing at some point during their sentence,” said a statement issued by spokesman David Maluchnik....

State Rep. Joe Haveman called the Michigan Supreme Court’s ruling disappointing and said individuals incarcerated as juveniles “deserve a hearing to re-evaluate their case.”

“It is baffling how this can be considered equal treatment under the law,”said the Holland Republican. “I said before, and I still believe, that the Supreme Court of the United States needs to revisit this issue and clarify whether the intent was for their original ruling to apply retroactively. .... If a juvenile sentence without the opportunity for parole is cruel and unusual punishment going forward, it is also cruel and unusual punishment for those who entered prison as children, who don’t have even the faintest glimmer of hope that even if they completely change who they are, they will ever walk free. It is further cruel and unusual punishment for the judge who didn’t want to hand down a mandatory life sentence, and wanted to consider mitigating factors, but wasn’t allowed to, and now must live with the guilt of sending a child to prison for their entire adult life.”

The fully lengthy Michigan Supreme Court ruling in this matter runs 120+ pages and covers more ground than just Miller retroactivity.  The full ruling is available at this link, and I hope to have a chance to blog about the substance of both the lengthy majority and dissenting opinions in the days and weeks ahead.  

For now, I will simply assert that the Supreme Court no long has any good reason or justification for continuing to refuse to take up the issue of Miller retroactivity that has split state courts nationwide.  Now that just about every state with a large number of mandatory juve LWOPers has ruled on this issue, this matter has plainly "percolated" more than sufficiently and the resulting jurisprudential split has profound consequences for many hundreds of juve lifers in many states.    

A few (of many) prior posts on Miller retroactivity:

 

July 10, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, July 09, 2014

Former NOLA mayor Ray Nagin gets 10-year federal prison sentence for corruption

As reported in this New York Times article, "Ray Nagin, the former mayor of New Orleans, was sentenced to 10 years in prison on Wednesday on federal corruption charges, ending a case that began with the rebuilding of the city after Hurricane Katrina." Here are a few more more details of this high-profile federal sentencing:

The sentence was less than the recommended 15 years, but Judge Ginger Berrigan of United States District Court for the Eastern District of Louisiana told the court that the evidence failed to show that Mr. Nagin had organized or had been a leader of a corruption scheme....

Prosecutors objected to the sentence, a move that could set up an appeal. MOReaction was swift, and mixed. “I think that he got off lightly considering the violations of the public trust,” said Edward E. Chervenak, a political science professor at the University of New Orleans and a critic of Mr. Nagin during his eight years as mayor.

“I think he should have gotten more time,” says Michelle Alford, 37, a native of New Orleans and a hotel employee. “He did nothing to benefit the city. I think he should have gotten 20 years at least. I think it’s ridiculous. It’s ridiculous.”

July 9, 2014 in Celebrity sentencings, Offender Characteristics, White-collar sentencing | Permalink | Comments (6) | TrackBack

Tuesday, July 08, 2014

Senators Paul and Booker introducing another important bipartisan CJ reform bill

140707_rand_paul_cory_booker_gty_605As reported in this new Washington Post column, a pair of "freshmen senators eager to expand their national profiles are teaming up to introduce a comprehensive overhaul of the nation's criminal justice system that they say will cut government spending and help make it easier for nonviolent criminals to eventually secure a job." Here are the exciting details:

The proposals set to be unveiled Tuesday by Sens. Cory Booker (D-N.J.) and Rand Paul (R-Ky.) are unlikely to advance this year, but address a series of policy and political priorities for both senators. Booker previously served as mayor of Newark and has made the fate of inner city youth a key part of his public service. Partnering with Paul continues Booker's pattern of seeking out Republicans to work with as he casts himself as a bipartisan broker ahead of his election campaign in November for a full term.

Paul has openly discussed running for president in 2016 and has talked regularly about his concern that the nation's prisons are overcrowded with people serving excessive sentences for minor crimes. Such concerns are a key element of his libertarian-leaning philosophy and further cast him as a Republican eager and willing to cross the aisle -- and visit the nation's urban centers -- to seek out policy solutions and gain supporters in areas of the country often ignored by Republicans.

Most of all, aides say the legislation addresses a common concern for Booker and Paul: That the United States accounts for just 5 percent of the world's population, but a quarter of the world's prison population.

The REDEEM Act proposal would encourage states to raise the age of criminal responsibly to 18 years of age; expunge or seal the records of juveniles who commit non-violent crimes before they turn 15; place limits on the solitary confinement of most juveniles; and establish a system to allow eligible nonviolent criminals to petition a court to ask that their criminal records be sealed. Sealing the records would keep them out of FBI background checks requested by employers and likely make it easier for those former offenders to secure a job.

Currently 10 states set the age at which someone can be tried in adult criminal court below 18, a move that the senators said in their statement "sends countless kids into the unforgiving adult criminal system." In hopes of reversing the trend, Booker and Paul propose giving states that change the minimum age preference when applying for federal community police grants. The same preference would be given to states that allow nonviolent offenders to petition to have their criminal records sealed. Once the records are sealed, an offender could lawfully claim that their records don't exist.

Booker said in a statement that the legislation "will ensure that our tax dollars are being used in smarter, more productive ways. It will also establish much-needed sensible reforms that keep kids out of the adult correctional system, protect their privacy so a youthful mistake can remain a youthful mistake, and help make it less likely that low-level adult offenders re-offend."

Paul said, "The biggest impediment to civil rights and employment in our country is a criminal record. Our current system is broken and has trapped tens of thousands of young men and women in a cycle of poverty and incarceration."...

The fate of the REDEEM Act is unclear since most legislation introduced this year has failed to advance beyond the committee level, especially in the Senate, where years-long personality-driven disputes over procedure and fiscal policy have essentially driven the chamber to a halt.

But the new proposals help build out the policy portfolios for both senators. Paul unveiled a plan last month that would restore voting rights for nonviolent felons in federal elections. Booker and Sen. Tim Scott (R-S.C.) introduced a proposal in April that would help create hundreds of thousands of jobs for younger Americans, especially minorities struggling to find work.

Senator Rand Paul's press release about the REDEEM Act can be found at this link; Senator Cory Booker's press release about the REDEEM Act can be found at this link.

Some recent and older related posts:

July 8, 2014 in Elections and sentencing issues in political debates, Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (1) | TrackBack

Thursday, July 03, 2014

Hawaii legislatively eliminates all juve LWOP sentences for all crimes

As reported in this AP piece, headlined "Hawaii ends juvenile life sentences without parole," a new piece of legislation means and and all "life sentences without parole for minors are now abolished in Hawaii." Here are the basics:

Gov. Neil Abercrombie signed a bill Wednesday recognizing that children convicted of first-degree murder should be treated differently than murderous adults.

Advocates say children are impressionable and sometimes can't get out of horrific, crime-ridden environments. Honolulu prosecutors argued the measure isn't fair to people who are born weeks apart from slightly younger perpetrators of the same crime.

July 3, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, June 29, 2014

Yet more ACCA messiness out of Maryland

I noted in this post last week this lengthy Baltimore Sun article discussing how the multi-dimensional jurisprudential mess that is application of the Armed Career Criminal Act is messing with federal courts in Maryland.  Now this new Baltimore Sun article, headlined "Federal appeals court ruling could lead to more reduced sentences; Court rules that Maryland burglary convictions should not be used to increase sentences," reviews the latest chapter to rhis saga courtesy of the Fourth Circuit. Here are the basics:

A federal appeals court ruling could add to the number of inmates with legal grounds to seek reduced sentences because of a shifting interpretation of sentencing guidelines and what constitutes a violent crime. The 4th U.S. Circuit Court of Appeals invalidated last week a 3.5-year sentence for Jose Herbert Henriquez, an El Salvadoran who pleaded guilty to illegally re-entering the United States. The lengthy sentence was based in part on a previous burglary conviction.

"A Maryland conviction of first-degree burglary cannot constitute a crime of violence," Judge James A. Wynn Jr. wrote for the majority, remanding the case to a lower court for Henriquez to be resentenced.

The finding follows a Supreme Court decision that gave judges new instructions on how to determine which state laws should count as violent. That finding and a subsequent appeals case has led to dozens of federal inmates from Maryland challenging their sentences, and Wynn's decision raises the possibility of further challenges.

Prosecutors say the technical rulings threaten to undermine efforts to impose long sentences and keep the public safe, but inmate advocates say prisoners who have been unjustly locked away for too long are finding hope in the string of court victories....

The federal sentencing guidelines call for longer sentences in unlawful re-entry cases for defendants previously convicted of a violent crime. Among those crimes, the guidelines include "burglary of a dwelling." Maryland's first-degree burglary law defines the crime as breaking into a dwelling with the intent to commit a crime of violence or a theft.

Wynn, joined by other 4th Circuit judges, found that Maryland law does not sufficiently define dwelling to ensure it's in keeping with a Supreme Court ruling that burglary only includes breaking into a building — and not, for example, a houseboat or an RV.

The Fourth Circuit ruling in US v. Henriquez, No. 13-4238 (4th Cir. June 27, 2014), is available here.

Recent related post:

June 29, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

Wednesday, June 25, 2014

New Sentencing Project analysis details states' sluggish response to Miller

The Sentencing Project has released this notable new briefing paper reviewing state responses to the Supreme Court's Miller ruling that the Eighth Amendment prohibits mandatory juve LWOP sentencing schemes. The title and introduction to the paper highlights its themes:

Slow to Act: State Responses to 2012 Supreme court mandate on life without parole

Two years have passed since the Supreme Court, on June 25, 2012, ruled that juveniles cannot be automatically sentenced to life without a chance at parole, striking down laws in 28 states.  A majority of the states have not yet passed any statutory reform.  Of the states that have done so, many require decades-long minimum sentences and few have applied the changes retroactively.

Here are a few data snippets from the body of the paper:

Thirteen of the 28 states that previously required LWOP for juveniles convicted of homicide offenses have since passed laws to address their sentencing structures, while 15 have not....

Statutes passed since Miller set the minimum sentence for juveniles convicted of homicide offenses between 25 and 40 years.... In Nebraska and Texas, the minimum sentence for juveniles convicted of homicide is 40 years.  Pennsylvania, Louisiana and Florida have set the minimum sentence at 35 years.  Arkansas, Delaware, Michigan, North Carolina, Washington, and Wyoming will sentence juveniles to minimum terms ranging from 25 of 30 years....

Miller left unstated whether the estimated 2,000 people already mandatorily sentenced to life without parole for crimes committed as juveniles could be resentenced. Most of these juveniles are denied the opportunity to apply for a new sentence.  Of the 13 states that have passed legislation, only four -- Delaware, North Carolina, Washington, and Wyoming – allow for resentencing among the current JLWOP population....

State Supreme Courts in Illinois, Iowa, Massachusetts, Mississippi, Nebraska, and Texas have ruled that Miller applies retroactively; some people will attain a new sentencing hearing.  Supreme Courts in Louisiana, Minnesota, and Pennsylvania have ruled that Miller does not apply retroactively.  Cases pushing the question of retroactivity remain before Supreme Courts in Alabama, Colorado, Florida, and North Carolina; these and other states have not yet issued rulings.

June 25, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Monday, June 23, 2014

Another account of how ACCA interpretation aggravation endures, this time in Maryland

Sentencing fanatics know full well the multi-dimensional jurisprudential mess that is application of the Armed Career Criminal Act in federal courts, and this lengthy Baltimore Sun article details how crabby these ACCA problems have become in Maryland. (Hat tip: How Appealing.)  The piece is headlined "Sentences challenged for Maryland prisoners deemed to have violent pasts: Supreme Court ruling triggers wide-ranging review in dozens of cases," and here are excerpts:

A little-noticed and highly technical Supreme Court decision is opening the way for dozens of federal inmates from Maryland to seek reduced sentences — even though trial judges found they had violent criminal pasts.  For some, the high court decision has already meant that sentences of 15 years and more have been cut substantially.  One inmate, for example, saw his sentence reduced from 15 years to about six years; he was released in February....

Prosecutors, including Maryland U.S. Attorney Rod J. Rosenstein, said lengthy sentences are necessary to rid the streets of violent offenders who continue to carry guns or commit other crimes.  "Defendants who indisputably committed violent crimes will get a break as result of this opinion," he said.

But advocates for the inmates say such sentences, which take certain previous convictions into account, are used indiscriminately and undermine the judiciary's role in crafting fair punishments.  "The petitions I've filed are going to undo the unjust incarceration of lots of people who should never have gotten these mandatory sentences," said Paresh S. Patel, an appeals attorney at the federal public defender's office. The office has filed challenges on behalf of 55 inmates and plans to pursue 13 more.

The petitions follow a 2013 Supreme Court decision that tweaked the way federal judges evaluate a defendant's criminal history when setting sentences in certain cases. Subsequent lower court decisions opened the way to the wave of challenges in Maryland....

A Reagan-era federal law called the Armed Career Criminal Act turns the 10-year maximum penalty for a felon ... possessing a gun or ammunition into a 15-year minimum for anyone previously convicted of three or more "violent felonies" or "serious drug offenses."  But determining which state laws should be included in those categories has continually vexed the courts.  

The Supreme Court case dealt with California's burglary statute, which covers everything from shoplifting to a violent break-in.  Federal judges had previously looked at the details of some prior convictions to determine whether an offender should be considered violent.... But the Supreme Court said that approach by judges is unreliable.  "The meaning of those documents will often be uncertain," Justice Elena Kagan wrote for the majority. "And the statements of fact in them may be downright wrong."

Instead, Kagan wrote, sentencing judges should only consider whether the barest elements of the crime — those that prosecutors must prove beyond a reasonable doubt — make the offense necessarily violent.  According to the high court, California's burglary law did not qualify.  Neither did Maryland's second-degree assault statute, which covers everything from unwanted touching to a violent beating, the 4th U.S. Circuit Court of Appeals ruled later.

In the aftermath of that ruling, at least one inmate convicted in Maryland, Ronald Hamby, has already been released....  He was convicted on a federal gun charge in 2007 and, because he had three prior second-degree assaults on his record, received a 15-year sentence.

Judge William D. Quarles Jr. said at Hamby's sentencing that he regretted the term he had to impose.  He added, "Mr. Hamby, sentencing is never a pleasure for a judge, and there are some things that make it considerably less pleasant, such as sending a 26-year-old person away for 15 years."

Attorney Joseph L. Evans, who defended Hamby at trial, said in a recent interview that his client was not the kind of person the law was intended to target.  Evans said the assaults "weren't stranger-on-stranger incidents. It wasn't like some sort of gang activity, or drug-related activity.  It was youngish guys acting out in stupid ways that violated the law." After the Supreme Court ruling, Hamby challenged his 15-year sentence and was resentenced to the time he had already served in prison plus two weeks.  He was released from federal custody in February.

Patel said the federal public defender's office is seeking to revise sentences in gun cases as well as others in which defendants were marked as career offenders.

While all the cases in dispute differ, Rosenstein said his office faces a difficult time upholding the long prison terms it originally secured.  He called new interpretations of sentencing laws "one-way ratchets in favor of the defendants."  Had prosecutors known the sentences were vulnerable, Rosenstein said, they might have used a different strategy — pursuing a different combination of charges, for example — to obtain a similar outcome.

Mary Price, general counsel of the advocacy group Families Against Mandatory Minimums, said that is one of the benefits of the Supreme Court ruling.  Rather than letting prosecutors depend on the mandatory sentences, the new approach will require them to work a bit harder to convince judges to hand out long prison terms, keeping the bench as a check on the system, she said. "Mandatory minimums provide prosecutors control over what the sentence is," Price said. "That whole setup has a problem with it."

June 23, 2014 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Friday, June 20, 2014

"A Suggested Minor Refinement of Miller v. Alabama"

The title of this post is the title of this new Comment by Devina Douglas now available via SSRN. Here is part of the abstract:

While some heralded the recent United States Supreme Court’s Miller v. Alabama decision — forbidding mandatory life without parole (LWOP) sentences for juveniles — as a step in the right direction for protecting the interests of juveniles within the adult criminal justice system, the decision is also a step backwards for the ability states to sentence their criminals as they sees fit....  This Comment argues the Court spoke too broadly applying its rule to all minors.

This essay will first summarize the Supreme Court’s previous sentencing precedent, the cases that paved the way for the Miller decision — establishing that “children are different,” — and then the Miller decision.  Next, it will highlight the troubles lower courts have faced in trying to implement the decision, the flaws in, and alternative interpretations of, the science relied upon, and then turn to the question of whether juveniles over the age of sixteen have reached sufficient maturity as to allow the system to hold them as accountable as adults for homicide crimes.  In response to the likelihood that those sixteen and over are sufficiently mature, this Comment will propose a way to preserve deference to the various state legislatures’ sentencing decisions while addressing increasing concern that juveniles should be treated differently.  The Miller pre-sentencing evaluation factors should only apply categorically to those under sixteen, and those sixteen and seventeen in cases where the juvenile offender is quite young or possesses what the Court calls twice-diminished culpability: where the system convicted the offender under an aiding and abetting or accomplice theory, or felony murder.

June 20, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

Wednesday, June 18, 2014

"Sentencing Terrorist Crimes"

The title of this post is the title of this notable new article by Wadie E. Said now available via SSRN. Here is the abstract:

The legal framework behind the sentencing of individuals convicted of committing terrorist crimes has received little scholarly attention, even with the proliferation of such prosecutions in the eleven years following the attacks of September 11, 2001. This lack of attention is particularly striking in light of the robust and multifaceted scholarship that deals with the challenges inherent in criminal sentencing more generally, driven in no small part by the comparatively large number of sentencing decisions issued by the United States Supreme Court over the past thirteen years. Reduced to its essence, the Supreme Court’s sentencing jurisprudence requires district courts to make no factual findings that raise a criminal penalty over the statutory maximum, other than those found by a jury or admitted by the defendant in a guilty plea. Within those parameters, however, the Court has made clear that such sentences are entitled to a strong degree of deference by courts of review.

Historically, individuals convicted of committing crimes involving politically motivated violence/terrorism were sentenced under ordinary criminal statutes, as theirs were basically crimes of violence. Even when the law shifted to begin to recognize certain crimes as terrorist in nature — airplane hijacking being the prime example — sentencing remained relatively uncontroversial from a legal perspective, since the underlying conduct being punished was violent at its core. In the mid-1990s, the development and passage of a special sentencing enhancement, U.S. Sentencing Guidelines Manual section 3A1.4, offered the opportunity for district courts to significantly increase the penalty for certain activity that fell into a defined category of what was termed “a federal crime of terrorism.” Coupled with the post-9/11 trend of the government using a relatively new offense, 18 U.S.C. § 2339B, the ban on providing material support to designated foreign terrorist organizations, as its main legal tool in the war on terrorism, sentences for such crimes increased significantly, even in situations where there was no link to an act of violence. The application of section 3A1.4 invites a district court to find certain facts, under the preponderance of the evidence standard, which bring the conduct into the category of a federal crime of terrorism, thereby triggering greatly enhanced punishment. A review of the reported decisions involving section 3A1.4 reveals, however, that only in rare cases do courts find the enhancement to be improperly applied. This Article argues that, as currently understood, the application of section 3A1.4 raises serious concerns about its fidelity to the Supreme Court’s Sixth Amendment jurisprudence.

The existence of a terrorism sentencing enhancement also serves as a kind of statutory basis to embolden courts of appeals to overturn a sentence as too lenient, as has been the case in certain high-profile prosecutions, such as those of Ahmad Abu Ali, Lynne Stewart, and Jose Padilla, among others. As the examples in this Article demonstrate, those courts of review that have engaged in this practice either fail to appreciate or disregard the Supreme Court’s instructions to engage in a highly deferential type of review of a district court sentence. At the heart of these opinions lies a message that terrorism is especially heinous, and those convicted of terrorist crimes are particularly dangerous to the point of being irredeemably incapable of deterrence. While these sentiments may or may not be accurate, the courts of appeals adopting them cite no evidence or studies in support, creating the impression that a court of review may overturn a sentence in a terrorism case simply because it disagrees with the district court, something the Supreme Court has said is improper. In light of this recent development, this Article recommends that some combination of Congress, the United States Sentencing Commission, and the federal courts establish standards to better help a court decide when a heightened punishment might be warranted, free from unsupported assumptions about the nature of terrorism or a particular defendant.

June 18, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

Thursday, June 12, 2014

Sixth Circuit declares unreasonable way-above-guideline sentence for repeat bank robber

It remains rare for federal defendants to prevail on reasonableness appeals absent a mis-calculation of the guidelines, and thus today's Sixth Circuit panel decision in US v. Payton, No. 13-1242 (6th Cir. June 12, 2014) (available here) is a noteworthy ruling for this reason alone. But the decision's reference and incorporation of recidivism data and brain science makes the ruling extra interesting. Here are some excerpts from the start and heart of the opinion for context:

This is a direct appeal from Arthur Payton’s sentence to serve 45 years in prison for organizing a series of bank robberies in Michigan.  Payton argues that his sentence is unreasonable.  We agree, vacate his sentence, and remand....

Payton turned 46 years old before his sentencing hearing.  Taking into account Payton’s criminal record, the seriousness of his crime, and penchant for recidivism, the presentence report recommended a sentence within the Guidelines range of 210 to 262 months, or between 17 and a half to 22 years.... The government urged the sentencing court to impose a more serious sentence of “at least” 300 months, or 25 years.  Payton’s counsel requested a sentence within the Guidelines range, arguing that even with a Guidelines sentence Payton would be released as an elderly man — somewhere between 63 to 68 years old — who would present little threat to the public.

After hearing each side, the judge sentenced Payton to 540 months, or 45 years in prison. The judge discussed a number of the sentencing factors listed in 18 U.S.C. § 3553(a), focusing on Payton’s brazen recidivism and the threat he posed to the public. The court concluded that the 45 year sentence was “the minimum sentence” that was “reasonable and sufficient but not greater than necessary to accomplish the goals of sentencing for this defendant.”...

Payton’s 45 year sentence is a “major departure,” “unusually harsh,” and one that demands a “significant explanation.”  Gall, 552 U.S. at 51.  A sentence that more than doubles the Guidelines recommendation, stacks twenty years on to the government’s request, and keeps the defendant in prison until he is ninety one years old requires explanation about why such a sentence is “sufficient, but not greater than necessary” to achieve the goals of sentencing. 18 U.S.C. § 3553(a).

We find the district court’s explanation lacking in Payton’s case.  At minimum, the court failed to adequately respond to Payton’s argument that his advanced age diminishes the public safety benefit of keeping Payton in prison an extra twenty years beyond the recommendation of the Guidelines.  Even presuming Payton’s desire to rob banks is insatiable, as the government argues, Payton contends that age will diminish his very ability to rob banks.  This argument attacks the foundations of the government’s support for the imposed sentence, and the court’s reasoning that the threat posed by a sixty-eight-year-old Payton makes a longer sentence not simply prudent but necessary.

The court's discussion to this point is notable, but the opinion then takes an especially interesting turn with this paragraph (in which I have eliminated footnote references):

The Sentencing Commission has observed that “[r]ecidivism rates decline relatively consistently as age increases.” Recent analysis from the Bureau of Justice Statistics considering the recidivism rates of released prisoners in 30 states (including Michigan) from 2005 to 2010 supported the Commission’s conclusion, finding decreased recidivism rates as prisoners age. These statistics suggest that past fifty years old there is a significantly lower rate of recidivism. Both the Guidelines and our Circuit’s cases explicitly acknowledge that a defendant’s age, and specifically old age, is a relevant consideration in sentencing. U.S.S.G. § 5H1.1; United States v. Berry, 565 F.3d 332, 341 (6th Cir. 2009); United States v. Davis, 537 F.3d 611, 616-17 (6th Cir. 2008). And observers of the criminal justice system have long acknowledged the “key” argument “that elderly offenders pose so low a risk to the public that long or otherwise harsh sentences have little to no utilitarian benefit.”  Indeed, they observe that “because of health or other reasons, elderly offenders have the lowest rate of recidivism of all types of offenders; in fact, only about one percent of elderly offenders ever face a second conviction.”   Studies indicate that neurotransmitters affecting aggression supplied at the synapses of brain neurons vary based on age, and may explain the observed decline in recidivism among older prisoners. Such evidence, together with statistical support, suffices to require a sentencing judge to explain carefully why a criminal defendant like Payton remains likely to engage in violent robberies between the age of seventy and ninety.  The district court did not address Payton’s argument on this issue, and therefore did not provide an adequate explanation for imposing such a harsh sentence.

Kudos to the Sixth Circuit for giving some real teeth to reasonable review, and especially for its willingness to bring some empirical research into an analysis of means for a sentence to be "sufficient but not greater than necessary."

June 12, 2014 in Booker in the Circuits, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (8) | TrackBack

Two thoughtful criticisms of DOJ's request for only limited retroactivity of proposed lower drug guidelines

As reported here on Tuesday, the Justice Department this week advocated to the US Sentencing Commission that it make its new reduced drug guidelines retroactive only for the lowest-level offenders now serving prison sentences under the old drug guidelines. No doubt because many are eager to see the new drug guidelines made fully retroactive and because I suggested the DOJ half-a-loaf approach was politically and practically astute, I have received two lengthy and thoughtful e-mails from informed advocates which are critical of the DOJ retroactivity position and my reaction to it. With permission, I am posting the comments here.

Federal public defender Sarah Gannett had this to say:

I was the Federal Defender witness at yesterday's USSC hearing on drugs-minus-two retroactivity, and I read your post about the DOJ proposal.  Although I can see how the DOJ proposal might have some facial appeal, I urge you to take a closer look at it.

There is little evidence that the exclusions the Department is proposing are tied in any meaningful way to public safety.  At best, they are overbroad, and will result in deserving inmates being excluded from relief (for example, drug addicts who are in high CHCs because of multiple minor prior convictions related to their addictions).  Indeed, the Commission has acknowledged that criminal history is an imperfect proxy for seriousness of criminal history and risk of recidivism, which is why the Guidelines include a departure provision for over-representation.  Unfortunately, because of the way 1B1.10 is currently written, those who received over-representation departures will be ineligible for relief if the Commission adopts the DOJ proposal.  Similar arguments can be made about the enhancements the DOJ proposes as limiting.

Both David Debold, on behalf of PAG, and Mary Price, for FAMM, focused on the DOJ's proposal in their testimony yesterday.  You may wish to speak to either or both of them. I also encourage you to read the Defender testimony, which is available on the Commission's website.  Although we did not know what the Department's proposal would be until it was announced yesterday, we anticipated and addressed many of the points the DOJ proposal raises (see especially pp. 5-6).

Full retroactivity is the just result, which the Criminal Law Committee of the Judicial Conference recognized.  In fact, in her oral testimony, Judge Keeley indicated that the CLC considered a proposal like the DOJ's, but rejected it out of fairness concerns.  The CLC recommended a different compromise -- which delays implementation just until the institutional players can adequately prepare to address the volume of cases.  This approach is more principled than the limitations suggested by the Department.  It is discussed in the CLC's statement, which also was posted.  (Defenders took the position that, based on experience gained in the crack retroactivity process and other factors, the players could find a way to manage the caseload.  See our statement at pp. 9-13, 14-15.)

Those who are concerned about community safety should remember that the retroactivity statute and policy statement require the sentencing judge to review and consider the appropriateness of early release in every individual case, an obligation that courts took seriously following the 2007 and 2011 retroactive crack amendments.

Former US Pardon Attorney Margaret Colgate Love had this to say:

I am genuinely puzzled by the Department's proposed "compromise" on the retroactivity issue, and surprised and disappointed by your response to it.  I suggest that you compare the Department's proposal for guidelines retroactivity with the President's eight commutations last December.

Only one or possibly two of the eight individuals whose sentences were commuted -- all presumably pursuant to a favorable Department recommendation -- would qualify for relief under the DOJ proposed "compromise".  Clarence Aaron was enhanced for obstruction, Gray and Wintersmith had guns, and Gilbert, Wheeler and Patterson and probably George were either career offenders or CHC III or above.  Of the eight, only Jason Hernandez (a gang member charged with massive amounts of drug, with juvie gun priors) would appear to be a candidate for relief under the DOJ proposed compromise, a curious result to say the least.

It certainly raises a question why the Department thinks it is appropriate to ask the President to make these tough case-by-case calls but does not trust district judges to make them.  Somehow that does not seem "politically and practically astute" (your words), or respectful of institutional roles and competencies.  Moreover, if DOJ really wanted to lighten the burden imposed on its own staff by its unprecedented and possibly ill-advised invitation to all federal prisoners to apply for clemency, and to the private bar to represent them, one would think it should be asking the courts to do more of this work, not less.

Perhaps this means that DOJ will interpret and apply its six new clemency criteria narrowly, and recommend only those prisoners who fit in this minor-record-no-gun-no-obstruction category -- those few who would not benefit from the guidelines reduction because of a mandatory minimum.  It is not at all clear to me that such a crabbed interpretation of the clemency initiative would be responsive to the President's clear signal in the December 8 grants about what he wants from his Justice Department.

If the only ones recommended for clemency are those who satisfy the criteria commended to the Commission by the Department, this will be a cruel hoax on federal prisoners, who are expecting a lot more.  It will also be deeply unfair to the hundreds of private lawyers who have agreed to donate their time to learn a new skill in preparation for telling a prisoner's story, in what may turn out to be a false hope that one of their clients will win the clemency lottery.

I commend Judge Irene Keeley for saying that full retroactivity is a "moral issue" and the courts’ “burden to bear.”  Good for the POs too, whose professionalism is encouraging. I agree with Judge Keeley that it would be fundamentally unfair to categorically deny full retroactivity to prisoners, just as it would be fundamentally unfair to categorically exclude certain prisoners from clemency consideration.

I hope the Department -- and the President -- will come to see that the apparatus already exists to achieve sentencing fairness, and it is in the courts not the executive.  I hope also that this President does not turn out to be the third in a row to be embarrassed by his Justice Department's clemency program.

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June 12, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack