Wednesday, April 16, 2014

Another bizarre, sad and fatal case of reefer madness?

As reported in this prior post, a Denver coroner report concluded that a young man fell to his death in March after eating marijuana cookies which may have caused him to act erratically.  Now, as reported in this local article, headlined "Police looking at pot role in wife's murder," another sad and fatal event might be linked to marijuana use in Colorado. Here are the distressing details:

The Denver man accused of shooting his wife in their home is in jail without bond. Richard Kirk made his first court appearance on Wednesday. He's facing first-degree murder charges after reportedly telling officers that he killed his wife, 44-year-old Kristine Kirk, while she was on the phone with 911.

Richard's family was in court on Wednesday to support him. They declined comment because they were advised not to speak.

It happened around 9:30 p.m. on Monday in the 2100 block of South St. Paul Street. Law enforcement sources tell 9NEWS that Kristine told the 911 dispatcher her husband Richard Kirk may have eaten marijuana edibles and that he was hallucinating and scaring their three young children.

"I can't get necessarily into specifics about that, but we are looking at a marijuana aspect of this investigation to see if it did play a role in this particular crime," said Denver Police spokesperson Sonny Jackson.

A longtime friend of the Kirk family, who did not want to be identified, told 9NEWS Richard is a religious man, happy-go-lucky and very friendly, who is not known for being violent. The friend also said Kristine was an amazing mother and good friend. They are stunned by what happened. It is a shock shared by many in the neighborhood where the crime scene tape remains a stark reminder of what unfolded there....

Richard has a prior arrest in Douglas County for driving under the influence and careless driving. A police source told 9NEWS it did not appear cops had ever been called to the home before.

Neighbors say they are still coming to grips with what happened. "Just kind of shocking, and it's almost just incredible that something like this would happen," Coyne said.

Kristine was on the phone with 911 for 12 minutes before she was shot. Denver Police said that's not unusual because the call originally came in as non-life threatening, but they plan to look into the circumstances of that call to make sure it was handled properly.

Though I am not ready to jump to any conclusions about this bizarre story, if this sad matricide gets attributed to marijuana use it could certainly impact public perceptions about the pros and cons of marijuana reform.

UPDATE:  I just came across this AP story, headlined "Police: Denver man ate marijuana candy before fatally shooting his wife," which provides these additional details about this tragic story:

Authorities say a Denver man accused of killing his wife while she was on the phone with 911 ate marijuana-infused candy before he allegedly shot her.

According to search warrants released Thursday, 44-year-old Kristine Kirk told dispatchers her husband bought and ate the candy before he started hallucinating and frightening the couple's three children. Police say 47-year-old Richard Kirk also may have taken prescription pain medication before he began acting erratically.

It was not clear whether the pot influenced his behavior.

April 16, 2014 in Marijuana Legalization in the States, Offense Characteristics | Permalink | Comments (6) | TrackBack (0)

Critical reflections on the Cantu commutation ... aka why some federal prosecutors perhaps deserve to be demonized

220px-TrialKafkaThe more I reflect on the typo-correction sentence commutation of federal prisoner Cesar Huerta Cantu (basics here), and especially after re-reading this 2255 dismissal order that followed Cantu's own effort to have a court fix its own significant sentencing error, the more disgusted I feel about the modern federal sentencing system and especially about the U.S. Department of Justice and those federal prosecutors most responsible for Cesar Cantu's treatment by our Kafkaesque system.  In an effort to achieve some catharsis, let me try to briefly explain my feelings in three basic points:

1.  Cantu's original federal sentencing as guidelines numerology:  My disgust begins as I think about the basic reality that our federal sentencing system enables a small numerical typo — what should have been a 34 was a 36 in the presentence report guideline calculations — to result in 38-year-old defendant with no criminal history (who pleaded guilty and had considerable family support) to get sentenced to an extra 3.5 years in prison.  I continue to struggle to find much sense of justice or wisdom in a federal sentencing system in which quantitative numbers invented by a government agency, rather than qualitative factors and reasoned judgment, often still conclusively determine how many years or decades defendants are ordered to spend locked in a cage.

2.  Cantu's original federal sentencing as federal actors gone numb:  Arguably more depressing than a federal sentencing system in which numbers invented by a government agency determine how long a defendant gets locked up are sentencing actors whose concern for the human realities of incarceration have been numbed by all the numbers.  One would hope that, as part of a system in which years of human experience for federal defendants (and those who care about them) get determined by basic math, everyone involved would make extra sure the math is always done right.  But, numbed by so many humans being imprisoned for so many years based on so many numbers, the author of the PSR did not notice a typo that inflated Cantu's guideline-recommend prison sentence by many years, and neither did the defense attorney representing Cantu, and neither did the US Attorneys prosecuting Cantu, and neither did the federal judge sentencing Cantu.

3.  Cantu's dismissed 2255 motion as federal prosecutors possessed:  Bill Otis and others sometimes complain that I seem at times to suggest federal prosecutors are evil or satanic.  In fact, I have great respect for the hard work of federal prosecutors, and I am sure I would much rather have my daughters date 99% of federal prosecutors than 99% of federal defendants.  But I must wonder about what kind of evil or satanic forces may have possessed the federal prosecutors who responded to Cantu's pro se 2255 motion to correct his sentence with a motion to dismiss this matter as time-barred.  

Based on my reading of this 2255 dismissal order that followed Cantu's motion, federal prosecutors have never disputed that a  typo resulted in Cantu receiving a sentence 3.5 years longer than he should have, nor have they disputed that federal government officials are wholly responsible for this consequential error.  Still, the federal prosecutors who contributed to a mistake costing Cantu 3.5 years of his freedom responded to his 2255 motion by urging the sentencing judge also responsible for this mistake to refuse to correct Cantu's sentence because Cantu discovered their mistakes too late.  I am hard-pressed to come up with adjectives to describe this federal prosecutorial decision to seek dismissal of Cantu's 2255 motion other than inhumane.

I want to be able to imagine a positive motivation for why federal prosecutors sought a procedural dismissal of Cantu's motion to correct his indisputably erroneous sentence: perhaps, I was thinking, six years after prosecutors helped get an erroneously long sentence imposed on Cantu, these prosecutors came to believe Cantu was a criminal mastermind still involved in serious criminal wrongdoing from prison.  But, as this New York Times article reports, years after his initial erroneous sentencing, Cantu provided "law enforcement authorities with substantial assistance on an unrelated criminal matter" and "he has been a model prisoner, taking vocational and life skills courses and expressing remorse."  In addition, according to the Times reporting, Cantu is married and has 8-year old daughter.  Even if prosecutors were, for whatever reasons, disinclined to help Cantu get his erroneous sentence fixed after Cantu himself had helped the prosecutors, wouldn't they lose a little sleep over the notion that a typo could end up costing Cantu's wife the chance to have her husband's help to raise their daughter during her coming adolescence?

I am hoping Bill Otis or other current or former federal prosecutors will help me feel better about the work of our federal sentencing system and the Department of Justice in the wake of the Cantu commutation.  Especially because Prez Obama has been so stingy with his clemency power, I want this latest commutation to be a reason to celebrate rather than curse our justice system.  But unless and until someone can metamorphasize my understanding of the work of federal prosecutors in this case, I have a hard time not thinking that Josef K. and Cantu have far too much in common. 

April 16, 2014 in Clemency and Pardons, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (24) | TrackBack (0)

Another sign of the modern sentencing times: notable sponsor for "How the Criminal Justice System Impacts Well-Being"

I am pleased to note a notable event taking place in Texas this evening under the banner "Rule of Law: How the Criminal Justice System Impacts Well-Being." Here is a description of the event, with its notable chief sponsor (and a link) to be found after the jump:

Can criminal justice system reform improve overall well-being for individuals, families, and communities?

The United States has only 5 percent of the world’s population but about 25 percent of its known prison population. In fact, the country's prison population has increased by 790 percent since 1980, exceeding 2 million people in 2002.

We hope you’ll join us for a discussion on how the sharp rise in the number of people behind bars has had a significant impact on well-being. A criminal conviction, even for a minor offense, hinders opportunity and advancement, can contribute to a breakdown in family structure, and can put a strain on community resources. All too often, the effects of incarceration propel former prisoners to commit another crime, creating a vicious cycle of recidivism.

Thoughtful dialogue on this issue can lead to solutions to the challenges facing the criminal justice system and those affected by it, especially the least fortunate. That’s why we’re bringing together leading figures in the criminal justice arena for a conversation on the use of criminal versus civil law; federal and state reforms; mandatory minimum sentences; and other topics.

Continue reading "Another sign of the modern sentencing times: notable sponsor for "How the Criminal Justice System Impacts Well-Being""

April 16, 2014 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack (0)

"Let the Burden Fit the Crime: Extending Proportionality Review to Sex Offenders"

The title of this post is the title of this paper by Erin Lynn Miller, which I just noticed via SSRN. Here is the abstract:

Under current due process doctrine, punitive damages awards against civil defendants are reviewed for "proportionality" with the underlying misconduct, in accordance with traditional principles of retribution in punishment.  This Comment argues that the same proportionality analysis could and should be applied to review statutes imposing harsh civil restrictions on the lives of released sex offenders who have already served their criminal sentences.

The argument first proceeds by way of analogy.  Like punitive damages in the civil context, sex offender restrictions are (1) in tension with the principle of fair notice of punishment, (2) imposed via a structurally defective procedure, (3) directed against a socially disfavored group, and (4) punitive in nature. It is these justifications that the Supreme Court has offered for reviewing the proportionality of punitive damages. Adapting the proportionality test developed in the punitive damages case BMW v. Gore, this Comment then outlines four factors that courts could use to review sex offender restrictions under the Due Process Clauses.

April 16, 2014 in Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack (0)

Denver reporting notable 2014 crime reduction since legal pot sales started

As this MSNBC article highlights, new data from Denver shows a notable decrease in crime over the first quarter of 2014.  Here are the encouraging details:

Three months after Colorado residents legalized recreational marijuana with the passage of Amendment 64 in Nov. 2012, Sheriff Tom Allman of Mendocio County, Calif. – a haven for marijuana growers – warned that an onslaught of crime was headed toward Colorado. “Thugs put on masks, they come to your house, they kick in your door. They point guns at you and say, ‘Give me your marijuana, give me your money,’” Allman told a Denver TV station in February....

But a new report contends that fourteen years later, even after Colorado legalized the sale of small amounts of marijuana for recreational use on Jan. 1 of this year, violent and property crime rates in the city are actually falling.

According to data from the Denver Police Department, violent crime (including homicide, sexual assault, robbery, and aggravated assault) fell by 6.9% in the first quarter of 2014, compared with the same period in 2013. Property crime (including burglary, larceny, auto theft, theft from motor vehicle and arson) dropped by 11.1%.

A study looking at the legalization of medical marijuana nationwide, published late last month in the journal PLOS ONE, found that the trend holds: Not only does medical marijuana legalization not correlate with an uptick in crime, researchers from the University of Texas at Dallas argue it may actually reduce it. Using statistics from the FBI’s Uniform Crime Report and controlling for variables like the unemployment and poverty rates; per capita income; age of residents; proportion of residents with college degree; number of police officers and prisoners; and even beer consumption, researchers analyzed data from all 50 states between 1990 and 2006....

“The central finding gleaned from the present study was that MML (medical marijuana legalization) is not predictive of higher crime rates and may be related to reductions in rates of homicide and assault. Interestingly, robbery and burglary rates were unaffected by medicinal marijuana legislation, which runs counter to the claim that dispensaries and grow houses lead to an increase in victimization due to the opportunity structures linked to the amount of drugs and cash that are present.”

The study drew a link between marijuana and alcohol use, surmising that the legalization of pot could cause the number of alcohol-fueled crimes to decline. “While it is important to remain cautious when interpreting these findings as evidence that MML reduces crime, these results do fall in line with recent evidence and they conform to the longstanding notion that marijuana legalization may lead to a reduction in alcohol use due to individuals substituting marijuana for alcohol. Given the relationship between alcohol and violent crime, it may turn out that substituting marijuana for alcohol leads to minor reductions in violent crimes that can be detected at the state level.”

Of course, this is a limited set of data and correlation does not prove causation. But, at the very least, this early crime data certain provide more helpful evidence for supporters of drug law reforms who are eager to assert that it is not drugs but drug prohibition that contributes to crimes.

Some recent related posts:

April 16, 2014 in Marijuana Legalization in the States, National and State Crime Data, Pot Prohibition Issues | Permalink | Comments (5) | TrackBack (0)

Tuesday, April 15, 2014

NY Times editorial laments "Echoes of the Superpredator"

While traveling, I missed this recent New York Times editorial discussing the persistence of tough juve sentencing laws after superpredator fears have receded.  Here are excerpts:

News reports — usually featuring images of glowering black teenagers — warned of the coming wave of violence that would flood the country. Respected criminologists bought into and amplified the hysteria.  Most destructively, almost every state passed laws making it easier to prosecute juveniles as adults, by increasing the number of crimes or reducing the age that triggered adult prosecution — and in some cases eliminating the minimum age altogether....

Two decades later, it’s easy to look back in judgment, but it would be a mistake to think the nation has fully moved beyond that mind-set.  Many states continue to punish juveniles as harshly as they can, even though the Supreme Court has held in a series of landmark rulings since 2005 that young people are “constitutionally different” from adults....

Some states have taken the court’s rulings, and its reasoning, to heart.  Since the ruling in Miller, five states have abolished juvenile life without parole in all cases.  In March, West Virginia lawmakers passed a bipartisan bill that provides parole review for any juvenile who serves at least 15 years in adult prisons.  Similar legislation is pending in Connecticut and Hawaii.

But other states keep fighting to prevent their juvenile offenders from ever having the chance to see the light of day.  Michigan now gives judges the “choice” of imposing a minimum sentence of 25 to 60 years instead of life without parole. Courts in other states have refused to apply the Supreme Court’s ruling retroactively, stranding many of the more than 2,000 inmates who were sentenced before the Miller decision.

The issue is not, as supporters of mandatory sentencing would have it, about going easy on criminals.  No one is ordering judges to release inmates who are not rehabilitated, or who pose a threat to society.  Rather, it is about giving legal meaning to the neurological, psychological and emotional vulnerabilities of young people. Those who make mistakes — even terrible ones — should not be sentenced to die in prison.

The myth of the superpredator helped spawn a generation of misguided laws that treated young people as adults, despite evidence that doing so actually increases recidivism. Most of these laws remain in effect.  The Supreme Court has rightly begun to dismantle their constitutional foundations, but some states are determined to act as if it were always 1995.

Recent related post:

April 15, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (4) | TrackBack (0)

Prez Obama commutes 15-year sentence for marijuana offender down to 11.5 years

Build-itIf NYU Law builds it, the President's counsel will come ... and, it seems, the President will act!  

With apologies for the bad "Field of Dreams" reference, I am not sure how else to react to the news I have got via this press release while I am sitting in the audience excited to be at this amazing on-going NYU conference on "Mercy in the Criminal Justice System: Clemency and Post-Conviction Strategies" with the keynote speaker White House Counsel Kathryn Ruemmler.   I was hoping and expecting the White House Counsel Kathryn Ruemmler would be making news via her afternoon keynote, but her boss beat her to the punch as the full text of the press release reveals:

Today, President Barack Obama granted clemency to the following individual:

• Ceasar Huerta Cantu, also known as Cesar Huerta Cantu – Katy, Texas

Offenses: Conspiracy to possess with intent to distribute marijuana; money laundering (Western District of Virginia)

Sentence: 180 months’ imprisonment (as amended), five years’ supervised release (May 11, 2006)

Commutation Grant: Prison sentence commuted to 138 months’ imprisonment

Thanks to the wonderful internet, I found this 2255 dismissal order concerning the Cantu case which suggests that Cantu received an erroneous initial sentence that he was unable to get changed via traditional legal means. But it is unclear from this order alone whether this sentence calculation error provides the basis and reason for this notable commutation.  A quick read of the order does suggest that the reduction from 180 to 138 appears to reflect precisely the sentence Cesar Huerta Cantu would have and should have gotten (after getting substantial assistane credit) had his initial sentence been calculated properly. 

Live-blogging UPDATE:  In her keynote speech at this NYU conference, White House Counsel Kathryn Ruemmler is talking up this grant and says that it shows that clemency can serve as a "fail-safe" for correcting errors that cannot be corrected by other means.

WH Counsel Ruemmler has announced that DOJ via BOP is going to alert federal prisonsers about the on-going clemency initiative previously announced by Deputy AG Cole.

MSM UPDATE:  Lots of press reports are now providing context for this grant such as this AP article headlined "Obama commutes sentence made longer by typo."

April 15, 2014 in Clemency and Pardons, Drug Offense Sentencing, Marijuana Legalization in the States, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

Notable comments by AG Holder about marijuana legalization in the states

This notable new Huffington Post article, headlined "Eric Holder 'Cautiously Optimistic' About Marijuana Legalization," reports on notable new interview with the AG discussing his latest view onf marijuana reform. Here are excertps: 

Attorney General Eric Holder is "cautiously optimistic" about how things are going in Washington state and Colorado following the legalization and state regulation of marijuana. But the nation's top law enforcement official, who spoke to The Huffington Post in an interview on Friday, also said it was tough to predict where marijuana legalization will be in 10 years.

"I'm not just saying that, I think it's hard to tell," Holder said in a jury room at the federal courthouse in Charleston, which he visited as part of the Justice Department's Smart on Crime initiative. "I think there might have been a burst of feeling that what happened in Washington and Colorado was going to be soon replicated across the country. I'm not sure that is necessarily the case. I think a lot of states are going to be looking to see what happens in Washington, what happens in Colorado before those decisions are made in substantial parts of the country."

Under Holder, the Justice Department has allowed marijuana legalization to move forward in Washington and Colorado and has issued guidance to federal prosecutors that is intended to open up banking access for pot shops that are legal on the state level.

Based on the reports he has received out of Washington and Colorado, Holder also said he thinks things are going about how he'd expected them to go. "I think what people have to understand is that when we have those eight priorities that we have set out, it essentially means that the federal government is not going to be involved in the prosecution of small-time, possessory drug cases, but we never were," Holder said. "So I'm not sure that I see a huge change yet, we've tried to adapt to the situation in Colorado with regard to how money is kept and transacted and all that stuff, and try to open up the banking system."

"But I think, so far, I'm cautiously optimistic," Holder continued. "But as I indicated to both governors, we will be monitoring the progress of those efforts and if we conclude that they are not being done in an appropriate way, we reserve our rights to file lawsuits."

Holder's positive outlook on how legalization is going in Washington and Colorado stands in contrast to the views expressed by Drug Enforcement Administration head Michele Leonhart, who reportedly criticized President Barack Obama for comparing marijuana to alcohol. Leonhart claimed earlier this month that voters were mislead when they voted to legalize and regulate marijuana on the state level, that Mexican drug cartels are "setting up shop" in Washington and Colorado and that this country should have "never gone forward" with legalization. Another DEA official recently claimed that "every single parent out there" opposed marijuana legalization.

Washington and Colorado, of course, aren't the only places in the U.S. reforming their approach to marijuana. In March, Washington, D.C., decriminalized the possession of small amounts of marijuana. Asked about D.C.'s move, Holder said it didn't make sense to send people to jail on possession charges. "Well, I'll tell you, as a former judge, I had to put in jail substantial numbers of young people for possessory drug offenses, and it was not from the perspective I had as a judge necessarily a good use of law enforcement resources," Holder said. "When I became U.S. attorney we put in place certain guidelines so that people would not end up, especially young people, with criminal records and all that then implies for them."...

Holder also acknowledged the Obama administration has made the political decision not to unilaterally "reschedule" marijuana by taking it off the list of what the federal government considers the most dangerous drugs, though that is something the attorney general has the authority to do. Instead, Holder has said DOJ would be willing to work with Congress if they want to reschedule marijuana, which doesn't seem likely to happen in the near future.

"I think that given what we have done in dealing with the whole Smart on Crime initiative and the executive actions that we have taken, that when it comes to rescheduling, I think this is something that should come from Congress," Holder said. "We'd be willing to work with Congress if there is a desire on the part of Congress to think about rescheduling. But I think I'd want to hear, get a sense from them about where they'd like to be."

April 15, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

"Secret Drugs, Agonizing Deaths"

The title of this post is the headline of this New York Times op-ed published yesterday.  Authored by Megan McCracken and Jennifer Moreno, here is how it starts:

Facing a critical shortage of lethal injection drugs, prison officials in a number of states have recently engaged in an unseemly scramble to obtain new execution drugs, often from unreliable and even illegal sources.  Not only does this trend raise serious questions about the constitutionality of executions, it also undermines the foundations of our democratic process.  In the name of security, states are now withholding vital information about their death penalty procedures — from death row prisoners’ lawyers and from judges, whose stamp of approval they need to impose the ultimate sanction, as well as from the public, in whose name the sentence is carried out.

States have long shielded the identities of executioners, a reasonable policy that should not interfere with judicial review of execution procedures.  But in the past year, Georgia, Missouri, Tennessee and other states have expanded the reach of their secrecy laws to include not just the execution drugs used, but even the pharmacies that supply them.

These laws hide the information necessary to determine if the drugs will work as intended and cause death in a humane manner.  For states to conceal how they obtain the execution drugs, whether those purchases comply with the law and whether the drugs themselves are legitimate prevents courts from analyzing the legality and constitutionality of death penalty procedures.  And that deprives the public of informed debate.

April 15, 2014 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (8) | TrackBack (0)

Monday, April 14, 2014

Two notable circuit discussions of federal consequences of child porn production

I have just come across two notable circuit opinion dealing with the criminal and civil consequences child porn production.  One was handed down late last week by the Fourth Circuit, US v. Cobler, No. 13-4170 (4th Cir. April 11, 2014) (available here), and it begins this way:

In this appeal, we consider the constitutionality and the reasonableness of a 120-year sentence imposed on a defendant convicted of production, possession, and transportation of child pornography, in connection with his sexual molestation of a four-year-old boy.  The defendant argues that his lengthy prison sentence is disproportionate to his crimes, constituting cruel and unusual punishment under the Eighth Amendment, and that the sentence is greater than necessary to achieve legitimate sentencing goals.  Upon our review, we reject the defendant’s constitutional challenge and conclude that the district court did not abuse its discretion in imposing a sentence designed to protect the public and to address the seriousness of the defendant’s crimes.  Accordingly, we affirm.

The other opinion was handed down this morning by the Sixth Circuit, Prewett v. Weems, No. 12-6489 (6th Cir. April 14, 2014) (available here), and it begins this way:

Stanley Weems pleaded guilty to one count of producing child pornography.  See 18 U.S.C. § 2251(a).  His victim, J.W., filed this civil action against Weems to obtain compensation for the abuse.  See id. § 2255(a).  The district court awarded $1 million, a figure reached by multiplying the presumed-damages floor in the civil-remedies statute ($150,000) by the number of videos Weems produced (seven) and by capping the damages at the relief sought in J.W.’s complaint ($1 million).  This accounting raises an interesting question: Does the civil-remedies statute set a presumptive floor of $150,000 for each criminal violation or a presumptive floor of $150,000 for each cause of action without regard to the number of alleged violations?   As we see it, the text, structure and context of the statute, together with the structure of related civil-remedy laws, establish that the $150,000 figure creates a damages floor for a victim’s cause of action, not for each violation.  We therefore reverse the district court’s contrary conclusion.

April 14, 2014 in Criminal Sentences Alternatives, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (3) | TrackBack (0)

House Judiciary Chair suggests Smarter Sentencing Act still facing uphill battle on the Hill

DownloadCQ News has this important new article on federal sentencing reform developments in Congress under the headline "Goodlatte: Don't 'Jump to Conclusions' on Mandatory Minimums." Here are excerpts:

House Judiciary Chairman Robert W. Goodlatte, R-Va., is not convinced that Congress should scale back mandatory minimum drug sentences, even as the Obama administration and a bipartisan coalition in the Senate step up their efforts to do so.  Goodlatte, speaking to reporters from CQ Roll Call and Politico during a pre-taped interview that aired Sunday on C-SPAN’s “Newsmakers” program, said the severity of drug sentences “is a legitimate issue for us to be examining.”

He noted that his committee has set up a task force to review mandatory minimum sentences and many other aspects of the federal criminal code, and he did not rule out taking up a bipartisan, administration-backed Senate proposal (S 1410) that would reduce some minimum drug penalties by as much as 60 percent.  The Senate could take up the proposal in the coming weeks after the Judiciary Committee approved it 13-5 in March.

Despite signaling his willingness to consider sentencing changes, Goodlatte said, “I want to caution that we shouldn’t jump to conclusions about what is right and what is wrong with the law yet.” Asked whether he believes that some federal prisoners are facing dramatically long sentences for relatively minor drug crimes — a claim frequently made by supporters of an overhaul — Goodlatte expressed skepticism.

“If you’re talking about 25- or 30-year sentences, you’re talking about something that the judge and the jury found appropriate to do above mandatory minimum sentences, because those are five-year and 10-year sentences,” he said.  Regarding the mandatory minimum sentences themselves, he said, “you’ll find that the quantities of drugs that have to be involved are very, very large.”

In the case of marijuana possession, for example, it takes “hundreds” of pounds of the drug to trigger a five-year mandatory minimum penalty and “thousands” of pounds to trigger a 10-year mandatory minimum penalty, Goodlatte said.  “With other drugs that are very potent in much, much smaller doses, those quantities are much, much lower,” he said. “But if you look at it from the standpoint of what someone has to be engaged in dealing, you’re talking about large quantities before you get those minimums.”

The Senate bill, which is supported by conservatives including Ted Cruz, R-Texas, Mike Lee, R-Utah, and Rand Paul, R-Ky., would reduce 10-year minimum sentences for certain drug crimes to five years, while reducing five-year minimum sentences for other drug crimes to two years.  If those drug crimes result in “death or serious bodily injury,” mandatory minimum penalties would be slashed from their current 20 years to 10 years.  In all of the penalties being reconsidered, mandatory sentences are triggered based on the quantity of drugs involved in a particular crime....

Molly Gill, government affairs counsel for the advocacy group Families Against Mandatory Minimums, said in an e-mail that the quantity of drugs involved in a crime is “bad proxy for culpability” and suggested that it should not be used as the basis to defeat proposed changes to fixed drug sentences....

She noted that the independent U.S. Sentencing Commission, which sets advisory sentencing guidelines for the federal judiciary, found in a 2011 study that “the quantity of drugs involved in an offense is not closely related to the offender’s function in the offense.” So-called “drug mules,” for example, physically transport large quantities of narcotics for others but are not themselves major traffickers or kingpins, Gill said.

Even as Goodlatte showed skepticism about lowering mandatory drug sentences, Attorney General Eric H. Holder Jr. kept up his call for Congress to take action on the Senate proposal, known as the Smarter Sentencing Act.

After the Sentencing Commission approved its own changes in drug sentencing guidelines last week — a move that is expected to reduce some drug offenders’ penalties by an estimated 11 months — Holder urged Congress to follow up with more sweeping, statutory changes. “It is now time for Congress to pick up the baton and advance legislation that would take further steps to reduce our overburdened prison system,” he said in a statement.  “Proposals like the bipartisan Smarter Sentencing Act would enhance the fairness of our criminal justice system while empowering law enforcement to focus limited resources on the most serious threats to public safety.”

The full video of the interview with Rep. Goodlatte is available at this C-Span archive, and sentencing fans will want to cue the video up to a little after the 10 minute mark. Not long after that point, there is a discussion of federal marijuana policies and then the interview turn to drug sentencing generally. A review of the whole segment makes me a bit less pessimistic about the possibilities of federal sentencing reform making it through the House of Representatives. But being a bit less pessimistic is hardly being optimistic.

Some prior posts about federal prosecutorial perspectives on sentencing reform:

April 14, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack (0)

Would embrace of "judicial corporal punishment" help remedy mass incarceration?

The question in the title of this post is prompted by this provocative new commentary by John Dewar Gleissner and given the headline "Who is biased against prison and sentencing reform?".  Here are excerpts:

Private prison companies and the guards’ labor unions are biased, of course.  Politicians do not wish to appear soft on crime.  Some communities need the jobs prisons provide. The public is biased about crime generally, and believes crime rates are going up when they are actually declining.  Many want prison to be horrible.  Who can blame crime victims? Taxpayers dislike money going to prisons. Law-abiding people do not have much in common with prisoners.  Businesses don’t sell much to prisoners.  Prison industries lose money and cannot succeed with government control.

The media prefer sensational stories about egregious criminal behavior. Once the offender is sentenced, the story usually ends. Prisoners do not have access to the internet.

Incarceration is hidden from the eyes of the people, harmful to the morals of prisoners and expensive.  Cultural, generational and religious bias prevent us from crediting our ancestors or other countries with effective crime-control techniques....

Attacking the supply of illegal drugs did not work.  The costs of fully supporting 2.3 million inactive welfare recipients, America’s prisoners, finally caught our attention.  The Constitution is the standard in conditions of confinement litigation.  But when the Constitution was adopted, massive incarceration as we now know it did not exist.  Back then, judicial corporal punishment was constitutional; it was approved of or used by all the presidents carved into Mt. Rushmore.

Incarceration is all Western civilization has known for several generations.  As the death penalty declines, most of us think of prison as the nearly exclusive serious punishment method.  Criminal justice systems focus on the single, inflexible, expensive and inexorable dimension of time.  Most Americans are shocked by the idea of judicial corporal punishment, which is invariably depicted as cruel, perverted or unjust in movies and TV.

Science proves that rehabilitation, restitution and deterrence are not often achieved by lengthy incarceration.  But some violent offenders deserve their long prison sentences. Prisons will not be abolished.  Real bad folks need to stay behind bars.

We think society moves forward.  Reformers are supposed to be “forward-looking.”  Belief in continual social progress ignores history.  Society periodically degenerates into barbarism, disorganization, bankruptcy, genocide, war and revolution.  Scientific study of changed values sometimes takes decades before conclusions are reached and legislation enacted. Our belief in social progress is accompanied by rejection of biblical principles in favor of unproven secular values.

We do not often enough look in the Bible for answers. If we did, the relatively simple solution to ending massive incarceration would be obvious: Deuteronomy 25:1-3. We could cut the American prison population in half. Modern behavioral and neurological science can and would confirm the superior effectiveness of traditional judicial corporal punishment. Believe it or not, judicial corporal punishment was largely abolished in the U.S. because it was too effective.

Judicial corporal punishment is in public, less expensive, much faster and repeatable. Its last use in the United States was to punish wife-beating without diminishing family income. In The Collapse of American Criminal Justice, Harvard law professor William J. Stuntz wrote, “Today's would-be reformers would do well to … consider the possibility that the best models for productive change may not come from contemporary legislation or court decisions, but from a past that has largely disappeared from our consciousness. Sometimes, the best road forward faces back.”

April 14, 2014 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4) | TrackBack (0)

Sunday, April 13, 2014

"Vacancy in Justice: Analyzing the Impact of Overburdened Judges on Sentencing Decisions"

The title of this post is the title of this intriguing empirical paper I just noticed on SSRN. Authored by Jason Best and Lydia Brashear Tiede, here is the abstract:

Vacancies are one of the greatest challenges facing the federal judiciary and they persist due to the politics of the confirmation process.  Despite concerns as to the adverse consequences of judicial vacancies, research about their effects has remained elusive due to the difficulties of specifying the causal mechanism between vacancies and judicial decision-making.

Using an innovative instrumental variables approach to analyze the effect of vacancies on federal district court judges’ criminal sentencing decisions, we show that judges who are overburdened due to vacancies use shortcuts which affect the severity of punishment. Further, how the vacancy was created has differential effects on case outcomes.  Vacancies created by district judges’ assumption of senior status have minimal effects on punishment, while vacancies created by all other methods result in harsher penalties.  The results suggest that policymakers should prioritize filling vacancies based on the manner in which they are created.

April 13, 2014 in Who Sentences? | Permalink | Comments (0) | TrackBack (0)

Is SCOTUS now no longer all that interested in criminal justice issues?

The question in the title of this post is prompted by this chart concerning the make-up of the Supreme Court's merits docket this Term from the latest Stat Pack put together by the folks at SCOUTSblog.  The chart highlights that nearly 75% of the merits docket this Term involves civil cases.  In addition, this SCOTUSblog list of cert grants for October 2014 reveals that only one of nine grants for the next Term involves a criminal law issue (and that issue, as noted here, seems stunningly minor).

When Justices Alito and Sotomayor first joined the Court, it seemed as though they brought some extra interest and extra attention to the criminal justice part of the SCOTUS docket.  But of late it seems as though the Court is more eager to avoid rather than take up some important criminal justice matters.

Notably, there are any number of big lurking criminal justice issues relating to the Second (right to carry), Fourth (GPS tracking), Sixth (applications of Apprendi and Booker) and Eighth Amendments (applications of Graham and Miller).  I have an inkling that some of these matters will end up on the October 2014 docket, but this post perhaps highlights that I have a hankering for some more major criminal cases to be on the docket.

April 13, 2014 in Sentencing around the world, Who Sentences? | Permalink | Comments (3) | TrackBack (0)

Another notable (and astute?) local shaming sentence for elderly bully

Bully Sign Latino

As reported in this AP piece, "Ohio Judge Sentences Man To Wear 'I AM A BULLY' Sign," another notable sentence involving shaming has made national news this weekend. Here are the details:

A man accused of harassing a neighbor and her disabled children for the past 15 years sat at a street corner Sunday morning with a sign declaring he's a bully, a requirement of his sentence.

Municipal Court Judge Gayle Williams-Byers ordered 62-year-old Edmond Aviv to display the sign for five hours Sunday. It says: "I AM A BULLY! I pick on children that are disabled, and I am intolerant of those that are different from myself. My actions do not reflect an appreciation for the diverse South Euclid community that I live in."...

Aviv arrived at the corner just before 9 a.m., placing the hand-lettered cardboard sign next to him as he sat in a chair. Within a couple of minutes, a passing motorist honked a car horn. Court records show Aviv pleaded no contest in February to a misdemeanor disorderly conduct charge. His attorney didn't return a telephone call for comment.

Aviv has feuded with his neighbor Sandra Prugh for the past 15 years, court records show. The most recent case stemmed from Aviv being annoyed at the smell coming from Prugh's dryer vent when she did laundry, according to court records. In retaliation, Aviv hooked up kerosene to a fan, which blew the smell onto Pugh's property, the records said.

Prugh has two adult adopted children with developmental disabilities, cerebral palsy and epilepsy; a husband with dementia, and a paralyzed son. Prugh said in a letter to the court that Aviv had called her an ethnic slur while she was holding her adopted black children, spit on her several times, regularly threw dog feces on her son's car windshield, and once smeared feces on a wheelchair ramp. "I am very concerned for the safety of our family," Prugh wrote in a letter to the court for Aviv's sentencing. She said she just wants to live in peace.

The judge also ordered Aviv to serve 15 days in jail and to undergo anger management classes and counseling. He also had to submit an apology letter to Prugh. "I want to express my sincere apology for acting irrationally towards your house and the safety of your children," Aviv wrote. "I understand my actions could have caused harm but at that time I was not really thinking about it."

Regular readers know that I tend to be a supporter of shaming sentences as an alternative to prison terms in appropriate cases. And this case seem like just the kind of matter in which a little public shaming, as opposed to an extended jail term, seems to have a reasonable chance of being an effective deterrent and a less cost to Ohio taxpayers.

April 13, 2014 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (11) | TrackBack (0)

Saturday, April 12, 2014

"Bombshell or Babystep? The Ramifications of Miller v. Alabama for Sentencing Law and Juvenile Crime Policy"

The title of this post is the title of this symposium foreword authored by Paul Litton and now available via SSRN.  Here is the abstract:

This short essay, which serves as the Symposium Foreword, argues that the rationale of Miller is incoherent insofar as it permits juvenile LWOP sentences and that the Court misidentifies the foundational principle of Roper.  

First, in banning mandatory juvenile LWOP sentences, the Court invokes Woodson, which bans mandatory death sentences.  The Court maintains that Woodson, from its capital jurisprudence, applies because juvenile LWOP is “akin to the death penalty” for juveniles. But if the Court’s capital jurisprudence is binding based on that equivalence, Roper should imply that juvenile LWOP, like the death penalty, is unconstitutional for juveniles.  This essay briefly explores whether there is a principled reason for the Court to invoke Woodson but not Roper from its capital jurisprudence.

Second, the Court does cite Roper for its “foundational principle,” which is, according to the Court, “that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.”  However, this principle cannot be the bedrock of Roper.  Since Lockett, state capital sentencing schemes have not proceeded as though juvenile offenders were not children.  Juvenile capital defendants could introduce their youth and accompanying characteristics in mitigation.  Roper, therefore, is based on a much stronger principle, one that requires categorical removal of juveniles from the universe of death-eligible defendants and, thus, should imply the same for penalties equivalent to death.

This Foreword also provides a guide to the symposium’s wonderful contributions by Nancy Gertner, Will Berry, Frank Bowman, Josh Gupta-Kagan, Michael O’Hear, Clark Peters, Mary Price, and Mae Quinn.  In doing so, it highlights a fascinating theme running through many authors’ answer to whether Miller represents a “bombshell or babystep”: Miller’s implications for the Court’s methodology for conducting proportionality analyses and, specifically, for the role of “objective indicia” of public attitudes in such analyses.

April 12, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack (0)

Friday, April 11, 2014

Was it "disrespectful" to the judiciary (or, in fact, quite helpful) for AG Holder to order prosecutors not to oppose application of pending drug sentencing guideline reduction?

The question in the title of this post is prompted by this National Review article, headlined "Judge: Holder ‘Disrespected’ Judicial Branch In Sentencing Change," about a verbal skirmish that emerged during yesterday's US Sentencing Commission meeting to approve formally a small reduction in all federal drug guideline sentences (basics here).  Here are excerpts:

The United States Sentencing Commission Thursday unanimously approved an amendment to revise sentencing guidelines for non-violent drug offenders, but not before one commissioner accused Attorney General Eric Holder of having “disrespected” the judicial branch’s role in sentencing reform.

“I regret that, before we voted on the amendment, the Attorney General instructed Assistant United States Attorneys across the Nation not to object to defense requests to apply the proposed amendment in sentencing proceedings going forward,” Judge William Pryor, Jr. said at a public hearing in Washington. “That unprecedented instruction disrespected our statutory role, ‘as an independent commission in the judicial branch,’ to establish sentencing policies and practices under the Sentencing Reform Act of 1984.”...

In August, Holder revealed his “Smart on Crime” initiative, which includes recommendations for reduced sentencing, without consulting with the Sentencing Commission — an independent agency within the judicial branch tasked with setting such policies.  Although the sentencing reforms themselves were not controversial, Holder’s cavalier approach to separation of powers, including a March memo in which he “instructed the Assistant United States Attorneys across the Nation not to object to defense requests to apply the proposed amendment in sentencing proceedings going forward,” irritated commissioners and alarmed supporters of constitutional separation of powers.

The amendment approved Thursday, aims to reduce federal prison overcrowding by reducing non-violent drug trafficking offenders’ sentences by 17 percent. Holder did not attend the meeting. Instead, Commissioner Jonathan Wroblewski responded to what he called Pryor’s “very, very, very serious charge.” Wroblewski insisted that what the Attorney General did was “not only lawful, but in the greatest respect of the Justice Department,”

Chief Judge Ricardo Hinojosa stated that he was “surprised” by Wroblewski’s statement. He concurred with Pryor that Holder is setting a “dangerous precedent,” noting that two years ago, the Justice Department testified that it was not ready for reductions in sentencing, but that “all of a sudden, because the Attorney General says so” the DOJ has changed its course.

The meeting concluded with Chief Judge Patti Saris applauding the commission for its unanimous vote. But observers joined Pryor and Hinojosa in condemning Holder’s high-handed approach to constitutional boundaries.  “For those committed to the rule of law, the question now goes beyond whether reducing sentences for dealers in dangerous drugs is wise.  It’s whether the Attorney General, the chief law enforcement officer in the United States, is committed to following the law as it exists, or, instead, as he wants and speculates it might become,” William G. Otis a professor at Georgetown University Law Center, said in a statement.

My first reaction to this piece was to be intrigued and pleasantly surprised that Bill Otis was quoted criticizing the nation's top prosecutor for how he seeks to exercise his lawful prosecutorial discretion. (Notably, the author of this NRO piece seems to suggest that the AG should have felt some need to "consult" with a judicial branch agency before announcing a major prosecutorial initiative; I am pretty sure, based on prior debates over the potential problems with unreviewable prosecutorial discretion, that Bill does not believe it would be wise or even constitutional to expect federal prosecutors to have their charging policies reviewed by the judicial branch.)

My second reaction to this piece was to wonder if most federal judges agreed with Judges Pryor and Hinojosa that it was disrespectful and dangerous for the AG to instruct his prosecutors not to object to defense requests to apply the proposed reduced drug guidelines ASAP.  This issue is dynamic and challenging in part because if AG Holder had instructed prosecutors to object to application of these new guidelines until they formally became law in November, then defendants would likely start requesting sentencing delays in all federal drug cases throughout the bulk of 2014.  Because there are about 500 federal drug sentencings every week, this in turn would mean federal district judges nationwide would be receiving motions for sentencing postponements nearly every day for the next seven months.

Notably, just because AG Holder instructs his prosecutors not to object to the application of the proposed new drug guidelines, no judge is in turn obligated to follow the proposed drug guidelines.  Rather, judges now just have an easier time applying this new guidelines, if they so desire, without having to put all their drug cases on hold until November.  That is the context for the DOJ ex-officio representantive on the Commission, Jonathan Wroblewski, suggesting that AG Holder is actually seeking to help and show respect for the judiciary via his instructions to federal prosecutors.

That all said, if the substance of the drug guideline reform proposals now adopted by the Commission were very controversial (i.e., if the Commission itself was split) or if there was reason to believe that Congress and the President might formally reject the drug guideline reform proposal (i.e., if there was wide and vocal expressed opposition), then I think the concerns expressed by Judges Pryor and Hinojosa might be more compelling.  But since these judges themselves both voted with the unanimous Commission to lower the drug guidelines, and since there is momentum in Congress for even more drug sentencing reform, I do not really find AG Holder's exercise of his lawful discretion in this setting all that disrespectful or dangerous.

Some recent related posts:

April 11, 2014 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (14) | TrackBack (0)

Is New Hampshire on the verge of becoming the next state to abolish the death penalty?

As reported in this local AP article, headlined "On revote, N.H. Senate panel endorses death penalty repeal measure," the Granite State appears to have now moved a step closer to possible repeal of capital punishment. Here are the details:

The Senate Judiciary Committee yesterday revisited the idea of repealing New Hampshire’s death penalty and recommended that it pass, setting up a potentially historic vote in the chamber next week. The bill represents the most energetic recent effort to repeal the state’s centuries-old death penalty. It passed the committee by a 3-2 vote, days after the same panel issued a tie vote that could have sounded the death knell on the repeal effort.

The House has voted resoundingly for repeal, and the governor supports it. The Thursday vote in the Republican-controlled Senate is said to be too close to call. “I think it will be a tight vote,” Senate Majority Leader Jeb Bradley told the Associated Press. “I think it will not break down all that much on party lines.”...

The Senate Judiciary Committee voted 2-2 Tuesday with one member absent, an outcome that would have automatically sent a message to the Senate to kill the repeal measure. The committee reconsidered the issue yesterday in deference to Democrat Donna Soucy of Manchester, who missed Tuesday’s meeting due to a family medical issue. There was no debate.

Sens. Bette Lasky, a Nashua Democrat, Sam Cataldo, a Farmington Republican, and Soucy voted for repeal. Sens. Sharon Carson of Londonderry and David Boutin of Hooksett, both Republicans, voted against it.

The state is the closest to repealing the death penalty that it’s been since 2000, when both houses of the Legislature approved repeal, but then-Gov. Jeanne Shaheen vetoed it. Democratic Gov. Maggie Hassan has said she would sign the repeal measure, because it wouldn’t affect the death sentence of Michael Addison – convicted of killing Manchester police Officer Michael Briggs in 2006. Addison is the only death row convict in the state, which has not seen an execution since 1939.

Death penalty opponents greeted yesterday’s vote with cautious optimism. Rep. Renny Cushing, a Hampton Democrat whose father and brother-in-law were murdered in separate crimes, has not wavered in his opposition to the death penalty through nearly two decades of sponsoring repeal measures.

“Everybody’s a swing vote,” Cushing said after yesterday’s vote. “It’s not a party issue,” he added. “There are a lot of senators genuinely wrestling with this.”

The House last month voted 225-104 in favor of repeal. The vote in the 24-member Senate – with 13 Republicans and 11 Democrats – could come down to a one-vote margin. A tie vote would kill the measure.

April 11, 2014 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (15) | TrackBack (0)

"Abandoned: Abolishing Female Prisons to Prevent Sexual Abuse and Herald an End to Incarceration"

The title of this post is the title of this intriguing new article by David Frank now available via SSRN. Here is the abstract:

Because the U.S. is unable to prevent widespread sexual violations of incarcerated women, it should apply the prescriptions of a recent U.K. female prison abolitionist movement as the most effective and humane solution to the problem.

Part I of this article examines the mass incarceration, composition, and sexual victimization of U.S. female prisoners. Part II evaluates the most recent attempt to stop the sexual victimization of U.S. prisoners under the Prison Rape Elimination Act. Part III presents the U.K. abolitionist solution and the small, though notable, consensus of support that developed around it. Part IV contends that, because neither the Prison Rape Elimination Act nor any previous law has adequately protected prisoners from sexual abuse, the incarceration of women is unconscionable when adequate prison alternatives of support programs and community care are available. This Part also argues against alternatives rooted in retaliation and violence. The article concludes with hope: it argues that the best response to chaotic brutality is not calculated brutality, but humanity.

April 11, 2014 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (9) | TrackBack (0)

Thursday, April 10, 2014

US Sentencing Commission to vote on reducing drug sentencing guidelines

As detailed in this official notice, "a public meeting of the [US Sentencing] Commission is scheduled for Thursday, April 10, 2014, at 2:30 p.m."  On the official agenda is "Vote to Promulgate Proposed Amendments," and as reported in this prior post, in January the USSC voted to publish proposed amendments to the federal sentencing guidelines that include an across-the-board reduction in the sentences recommended for all drug offenses.  

I expect there will be some press reports about the USSC vote on the drug guidelines later today.  In the meantime, this effective new PBS Frontline article headlined "Feds to Reconsider Harsh Prison Terms for Drug Offenders," provides some background and context:

The federal prison population has expanded by nearly 800 percent in the past 30 years, spurred in part by the increasing use of tougher sentences applied to nonviolent drug crimes. Now there’s a growing movement to scale it back. On Thursday, the U.S. Sentencing Commission, an independent federal agency, plans to vote on an amendment to sentencing guidelines that could ultimately begin to winnow the federal prison population, nearly half of whom are people convicted of drug offenses.

The amendment is part of a bipartisan push away from America’s addiction to incarceration, which prison reform experts say costs far too much, not only in dollars — $80 billion a year in 2010 — but also in the devastation primarily of African-American communities, who have been disproportionately caught up in the system.

The commission’s proposal would lower the sentencing guideline levels for drug-trafficking offenses, allowing judges to impose reduced sentences by about 11 months, on average, for these crimes. The guidelines are the range between which a judge can sentence an offender. Currently, those guidelines are set higher even than mandatory minimum sentences — the lowest possible sentence a judge could impose — to give prosecutors bargaining power. The amendment would set the upper and lower guideline limits around the mandatory minimums, leading to lower sentences for nearly 70 percent of drug-trafficking offenders, the commission said....

Prison reform advocates say the commission’s proposal is an incremental step, but an important one. “When you’re serving 10 years, six months can make a difference,” said Jesselyn McCurdy, an attorney with the ACLU’s Washington legislative office. “It’s incremental, but it’s all important because it sends the larger message that we have to do something about the harsh sentencing in the federal system.”

Should the Sentencing Commission’s amendment pass, it will be sent to Congress, which will have 180 days to make any changes. If it does nothing — which is the likely outcome given bipartisan Congressional support for the proposal — the resolution will take effect on Nov. 1.

For years, states, which carry the bulk of U.S. prisoners, have taken the lead on sentencing reform — largely out of necessity. Struggling with stretched budgets and overflowing prisons, 40 states have passed laws that ease sentencing guidelines for drug crimes from 2009 to 2013, according to a comprehensive analysis by the Pew Research Center. Seventeen states have invested in reforms like drug treatment and supervision that will save about $4.6 billion over 10 years, according to the Justice Department.

Such reforms also have gained popular public support. According to Pew’s own polling, 63 percent of Americans say that states moving away from mandatory minimum sentencing is a “good thing,” up from 41 percent in 2001. Even more — 67 percent — said that states should focus on treatment, rather than punishment, for people struggling with addiction to illegal drugs....

The Sentencing Commission itself notes that substantial reform requires action by Congress. “Our proposed approach is modest,” said Patti Saris, the commission’s chairwoman. “The real solution rests with Congress, and we continue to support efforts there to reduce mandatory minimum penalties, consistent with our recent report finding that mandatory minimum penalties are often too severe and sweep too broadly in the drug context, often capturing lower-level players.”...

The Senate is currently considering a bill called the Smarter Sentencing Act, a bipartisan bill introduced in July 2013 by Sen. Richard Durbin (D-Ill.) and Sen. Mike Lee (R-Utah). It wouldn’t abolish mandatory minimums, but it would allow judges to impose more lenient sentences for certain non-violent drug offenses. “Our current scheme of mandatory minimum sentences is irrational and wasteful,” Lee said when introducing the bill, adding that the act “takes an important step forward in reducing the financial and human cost of outdated and imprudent sentencing policies.”...

But the bill, which even the senators acknowledged as “studied and modest” on their website, doesn’t have great odds of passing. According to govtrack.us, a nonpartisan website that tracks congressional legislation, the Smarter Sentencing Act has only a 39 percent chance of being enacted.

Some recent related posts:

UPDATE:  This press release reports that, as expected, the USSC voted today to reduce the federal guidelines for all drug offenses.  Here is an excerpts from the press release:

The Commission voted unanimously to amend the guidelines to lower the base offense levels in the Drug Quantity Table across drug types. The drug guidelines under the amendment would remain linked to statutory mandatory minimum penalties. The Commission estimates that approximately 70 percent of federal drug trafficking defendants would qualify for the change, with their sentences decreasing an average of 11 months, or 17 percent, from 62 to 51 months on average.

The Commission this year has prioritized addressing federal prison costs and capacity with a continued commitment to public safety. The Commission estimates that the amendment reducing drug guidelines would reduce the federal prison population by more than 6,500 over five years, with a significantly greater long-term impact.

“This modest reduction in drug penalties is an important step toward reducing the problem of prison overcrowding at the federal level in a proportionate and fair manner,” said Judge Patti B. Saris, chair of the Commission. “Reducing the federal prison population has become urgent, with that population almost three times where it was in 1991.”

In addition, the Chair of the USSC made a statement in conjunction with today's vote, which is now available here via the USSC's website.  The interesting three-page statement concludes with this interesting paragraph concerning possible retroactive application of the proposed new guidelines: 

Over the next few months, the Commission will be studying the issue of whether the drug amendment should apply retroactively, which we are statutorily required to do. This is a complex and difficult issue, and requires a different analysis than the decision we have made today about reducing drug sentences prospectively. The Commission will take into account, as it always does when considering retroactivity, the purposes of the amendment, the magnitude of the change, and the difficulty of applying the change retroactively, among other factors. I know the Commission will carefully consider this issue, and many stakeholders will have strong views. I do not know how it will come out, but we will carefully review data and the retroactivity impact analysis we have directed staff to conduct as well as public comment in order to ensure that we weigh all perspectives.

April 10, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8) | TrackBack (0)