Sunday, March 02, 2014

Has anyone formally calculated exactly how very few federal sentences are found unreasonable?

The question in the title of this post is prompted by two noteworthy (or perhaps not really noteworthy) circuit opinions from last week in which two way-above-guideline sentences were affirmed as reasonable by the panels of the First and Seventh Circuits in US v. Santiago-Rivera, No. 13-1228 (1st Cir. Feb. 28, 2014) (available here); US v. Castaldi, No. 10-3406 (7th Cir. Feb. 24, 2014) (available here).  In both cases, a defendant appealed as unreasonable the imposition of a prison sentence roughly a decade longer than the (already lengthy) prison term suggested by the applicable guidelines.  In both cases, the panel found the way-above-guideline sentence procedurally and substantively reasonable (though one Seventh Circuit judge dissented in Castaldi).

At one level, these two rulings highlight how increased district court discretion to sentence outside the guidelines will often be used enhance sentences involving serious and harmful crimes.  (Castaldi involved a big Ponzi scheme impacting many persons, Santiago-Rivera involved a police officer shooting.)  In addition, both rulings show that circuits may be especially inclined to find way-above-guideline sentences reasonable, even more so than way-below-guideline sentences.  (I cannot readily think of one, let alone two, sentences set a full decade below the calculated guideline sentence upheld after an appeal by the government.)  But, as the title of this post suggests, perhaps the broader story is how very few federal sentences are even found unreasonable.

Booker has been the federal sentencing law of the land since 2005, but the true era of modern reasonableness review likely should be defined as starting in December 2007 after the Supreme Court handed down the last of the troika of reasonableness review cases via Gall, Kimbrough and Rita.  Since those opinions were issued, we have probably had over 500,000 federal sentences imposed, and I suspect that less than 250 have been found procedurally unreasonable on appeal and less than 50 have been found substantively unreasonable.  (This federal defender document titled Appellate Decisions After Gall (and updated through early December 2013) provides the most complete accounting of reasonableness rulings that I have seen.)

In other words, based on this very rough assessment of reasonableness review outcomes compared to sentences imposed, it would seem that in only about one of every 2,000 federal sentencings does something go procedurally wrong and in only one of every 10,000 federal sentencings involves some substantive unreasonableness.  (Of course, the vast majority of federal sentences are not appealed, in part due to the wide use of appeal waivers in plea agreements, so the outcomes of appeals is not the ideal measuring stick here.  Still, I think these numbers are telling.)

For a lot of reasons, the prospect of reasonableness review may do a lot more work and have a lot more influence than the so-very-rare reversal of a sentence as unreasonable would suggest.  Still, I have largely given up my prior habit of regularly report notable federal circuit rulings concerning reasonableness appeals in part because affirmances in cases like Castaldi and Santiago-Rivera are, statistically speaking, not really notable.

UPDATE: I just noticed that a Fourth Circuit panel also issued an opinion on the same day as the First Circuit opinion linked above that affirms as reasonable a sentence set about 8 years above the guideline range in US v. Washington, No. 13-4132 (4th Cir. Feb. 28, 2014) (available here).

March 2, 2014 in Booker and Fanfan Commentary, Booker in the Circuits, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Tuesday, February 25, 2014

Thanks to Gov. Brown, Plata, budget woes, state court rulings and/or _____, California lifers now have a real chance for parole

MadlibsThe weird "Mad-Libs" title to this post is my reaction and query in response to this notable new AP report headlined "California 'lifers' leaving prison at record pace."  Here are the details:

Nearly 1,400 lifers in California's prisons have been released over the past three years in a sharp turnaround in a state where murderers and others sentenced to life with the possibility of parole almost never got out. Gov. Jerry Brown has granted parole to a record number of inmates with life sentences since he took office in January 2011, going along with parole board decisions about 82 percent of the time.

Brown's predecessor, Arnold Schwarzenegger, authorized the release of 557 lifers during his six-year term, sustaining the board at a 27 percent clip. Before that, Gov. Gray Davis over three years approved the release of two.

This dramatic shift in releases under Brown comes as the state grapples with court orders to ease a decades-long prison crowding crisis that has seen triple bunking, prison gyms turned into dormitories and inmates shipped out of state.

Crime victims and their advocates have said the releases are an injustice to the victims and that the parolees could pose a danger to the public. More than 80 percent of lifers are in prison for murder, while the remaining are mostly rapists and kidnappers.  "This is playing Russian roulette with public safety," said Christine Ward, executive director of the Crime Victims Action Alliance.  "This is a change of philosophy that can be dangerous."

The governor's office said the overcrowding crisis plays no role in the parole decisions. Rather, the governor's office said, each case is addressed individually and Brown is bound by court orders that require state officials to ease the stringent parole requirements that have dramatically increased the time murderers spend in prison.

Today, an inmate convicted of first-degree murders can expect to serve an average of 27 years -- almost twice what it was two decades ago before California became the fourth state to give governors the politically fraught final decision on lifer paroles.  Since then, the number of lifers has grown from 9,000 to 35,000 inmates, representing a quarter of the state prison population.

But two seminal California Supreme Court rulings in 2008 have significantly eased tough parole restrictions.  The court ordered prison officials to consider more than the severity of the applicant's underlying crimes.  It ruled that inmates' records while incarcerated plus their volunteer work should count heavily in assessing early release.

State figures show that since the rulings, the board has granted parole to nearly 3,000 lifers, including 590 last year and a record 670 in 2012.  In the three decades prior to the 2008 rulings, only about 1,800 such prisoners were granted parole.

Davis allowed only two inmates released out of 232 board decisions granting parole between 1999 and 2002. Schwarzenegger sustained the board at a 27 percent clip during his seven years in office when he was presented with 2,050 paroles granted by the board. Brown has allowed 82 percent of the 1,590 paroles granted by the board.

Brown's office says he is operating under a different legal landscape than previous governors, and that he is following court rulings and a 23-year-old state law that gave governors the power to block paroles of lifers who the state board found suitable for release....

Gov. Pete Wilson, the first governor vested with veto power, used it sparingly, though the parole board was approving just a few dozen paroles a year compared with the hundreds the board has been approving in recent years.  Between 1991 and when he left office in January 1999, he approved 115 of the 171, or 67 percent, of the lifers the board found suitable for release....

The few studies of recidivism among released lifers including a Stanford University report show they re-offend at much lower rates than other inmates released on parole and none has been convicted of a new murder.  Of the 860 murderers paroled between 1990 and 2010 that Stanford tracked, only five inmates committed new crimes and none were convicted of murder. The average released lifer is in his mid-50s.  Experts say older ex-cons are less prone to commit new crimes than younger ones.

Brown has reversed the parole board.  On Friday, his office announced it blocked the parole of 100 inmates deemed fit by the board for release and sent two others back to the board for reconsideration.  One of those inmates found fit for release by the board but blocked by Brown was James Mackey, a former University of Pacific football player found guilty of shooting his victim with a crossbow and then strangling him. Brown said Mackey hasn't sufficiently owned up to the crime.  "Until he can give a better explanation for his actions," Brown wrote, "I do not think he is ready to be released."

Ernest Morgan on the other hand, is a lifer Brown did let free. Morgan, a San Francisco man convicted of the shotgun slaying of his 14-year-old stepsister burglarizing the family home, was turned down for parole five times before the board granted him parole, only to be overruled by Schwarzenegger.... "So I was devastated when Schwarzenegger denied my release," said Morgan, who now is majoring in business management at San Francisco State. "I felt I was a political pawn who would never get out."

In 2011, Brown approved his release after 24 years in prison. Brown made no comment in granting Morgan his release. Instead, the governor signaled his approval by taking no action within 30 days of the parole board's decision becoming official. "It's been a remarkable and unexpected change," said Johanna Hoffman, Morgan's lawyer who has represented hundreds of lifers vying for parole since becoming a California lawyer in 2008. "The overcrowding issue has a huge amount to do with it."

February 25, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Curious racial politics omission in otherwise astute analysis of Prez Obama's criminal justice reform record

New York Times big-wig Bill Keller has this interesting final column headlined "Crime and Punishment and Obama," which discusses his transition to a notable new job in the context of a review of Prez Obama's criminal justice record.  Here are excerpts of a piece which should be read in full and which, as my post title suggests, does not discuss racial politics as much as I would expect: 

[W]hen the former community organizer took office, advocates of reform had high expectations.

In March I will give up the glorious platform of The Times to help launch something new: a nonprofit journalistic venture called The Marshall Project (after Thurgood Marshall, the great courtroom champion of civil rights) and devoted to the vast and urgent subject of our broken criminal justice system.  It seems fitting that my parting column should address the question of how this president has lived up to those high expectations so far....

In his first term Obama did not make this a signature issue; he rarely mentioned the subject....

In practice, the administration’s record has been more incremental than its rhetoric.

By the crudest metric, the population of our prisons, the Obama administration has been unimpressive.  The famously shocking numbers of Americans behind bars (the U.S., with 5 percent of the world’s people, incarcerates nearly a quarter of all prisoners on earth) have declined three years in a row.  However the overall downsizing is largely thanks to California and a handful of other states.  In overstuffed federal prisons, the population continues to grow, fed in no small part by Obama’s crackdown on immigration violators.

Obama is, we know, a cautious man, leery of getting ahead of public opinion and therefore sometimes far behind it.  And some reform advocates argue that it made sense for Obama to keep a low profile until a broad bipartisan consensus had gathered.  That time has come. Now that Obama-scorners like Senators Rand Paul and Mike Lee and even Ted Cruz are slicing off pieces of justice reform for their issue portfolios, now that red states like Texas, Georgia, South Carolina, Missouri and Kentucky have embraced alternatives to prison, criminal justice is one of those rare areas where there is common ground to be explored and tested.

The Obama presidency has almost three years to go, and there is reason to hope that he will feel less constrained, that the eight commutations were not just a pittance but, as he put it, “a first step,” that Holder’s mounting enthusiasm for saner sentencing is not just talk, but prelude, that the president will use his great pulpit to prick our conscience.

“This is something that matters to the president,” Holder assured me last week.  “This is, I think, going to be seen as a defining legacy for this administration.”  I’ll be watching, and hoping that Holder’s prediction is more than wishful thinking

This column covers a lot of modern criminal justice ground quite well, and gets me even more excited for Keller's forthcoming new journalistic venture called The Marshall Project. But I find curious and notable that this commentary does not directly address the racialized political dynamics that necessarily surrounds the first African-American Prez and AG if and whenever they prioritize criminal justice reform.

I have heard that Thurgood Marshall, when doing advocacy work with the NAACP before he became a judge, was disinclined to focus on criminal justice reform because he realized the politics of race made it hard enough for him to garner support for even law-abiding people of color. Consequently, while important federal elections in which Prez Obama is the key player still loom, I suspect the Prez and his team have made a very calculated decision to only move very slowly (and behind folks like Senator Rand Paul) on these matters.

And yet, just as Thurgood Marshall could and did make criminal justice reform a priority when he became a judge and Justice insulated from political pressure, so too am I expecting that Prez Obama will prioritize criminal justice issues once he in the last two lame-duck years of his time in the Oval Office. Two years is ample time for the Prez to make federal criminal justice reform a "defining legacy for this administration," and there is good reason to think political and social conditions for bold reform work will be in place come 2015 and 2016 (even with the inevitably racialized realities surrounding these issues).

February 25, 2014 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

"The Banality of Wrongful Executions"

The title of this post is the title of this new piece authored by Brandon Garrett reviewing a number of recent new criminal justice books. Available via SSRN, here is the abstract:

What is so haunting about the known wrongful convictions is that they are the tip of the iceberg. Untold numbers of mundane errors may escape notice while sending the innocent to prison and even to the death chamber. That is why I recommended to readers a trilogy of fascinating new books that look into the larger but murkier problem of error. In this article for Michigan Law Review's annual book issue, I review three books: Los Tocayos Carlos, by James Liebman, Shawn Crowley, Andrew Markquart, Lauren Rosenberg, Lauren Gallo White and Daniel Zharkovsky; Anatomy of Injustice: A Murder Case Gone Wrong, by Raymond Bonner; and In Doubt: The Psychology of the Criminal Justice Process, by Dan Simon. Each of these books brings important new perspective and understanding to the reasons why our criminal justice system can make terrible mistakes.

February 25, 2014 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (25) | TrackBack

Monday, February 24, 2014

Via summary reversal, SCOTUS decides Alabama courts wrongfully rejected Sixth Amendment claim of death row defendant

Though not yet garnering much attention, I think SCOTUS-watchers and especially capital punishment followers should take not of a summary reversal by the Supreme Court this morning in Hinton v. Alabama, No. 13-644 (S. Ct. Feb 24, 2014) (available here). Here is how the opinion starts and a key section from the meat of the ruling:

In Strickland v. Washington, 466 U. S. 668 (1984), we held that a criminal defendant’s Sixth Amendment right to counsel is violated if his trial attorney’s performance falls below an objective standard of reasonableness and if there is a reasonable probability that the result of the trial would have been different absent the deficient act or omission.  Id., at 687–688, 694.  Anthony Ray Hinton, an inmate on Alabama’s death row, asks us to decide whether the Alabama courts correctly applied Strickland to his case. We conclude that they did not and hold that Hinton’s trial attorney rendered constitutionally deficient performance.  We vacate the lower court’s judgment and remand the case for reconsideration of whether the attorney’s deficient performance was prejudicial....

“In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances.” Strickland, supra, at 688.  Under that standard, it was unreasonable for Hinton’s lawyer to fail to seek additional funds to hire an expert where that failure was based not on any strategic choice but on a mistaken belief that available funding was capped at $1,000....

The trial attorney’s failure to request additional funding in order to replace an expert he knew to be inadequate because he mistakenly believed that he had received all he could get under Alabama law constituted deficient performance..... Hinton’s attorney knew that he needed more funding to present an effective defense, yet he failed to make even the cursory investigation of the state statute providing for defense funding for indigent defendants that would have revealed to him that he could receive reimbursement not just for $1,000 but for “any expenses reasonably incurred.”  An attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland....

We wish to be clear that the inadequate assistance of counsel we find in this case does not consist of the hiring of an expert who, though qualified, was not qualified enough. The selection of an expert witness is a paradigmatic example of the type of “strategic choic[e]” that, when made “after thorough investigation of [the] law and facts,” is “virtually unchallengeable.” Strickland, 466 U. S., at 690.  We do not today launch federal courts into examination of the relative qualifications of experts hired and experts that might have been hired.  The only inadequate assistance of counsel here was the inexcusable mistake of law — the unreasonable failure to understand the resources that state law made available to him — that caused counsel to employ an expert that he himself deemed inadequate.

Though I am disinclined to make too big a deal out of this (little?) summary reversal, I am quite intrigued by the Court's ready conclusion (without any dissent) that inadequate research into what state law provided as available defense resources in this case made out deficient performance here. And though the Court says it does not want to now see "federal courts [launching] into examination of the relative qualifications of experts hired and experts that might have been hired," I suspect every capital habeas attorney worth his salt will be now eager to stress Hinton v. Alabama while encouraging just such an examination as part of any Sixth Amendment ineffective assistance claim.

February 24, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (42) | TrackBack

Sunday, February 23, 2014

"Shadow Sentencing: The Imposition of Supervised Release"

The title of this post is the headline of this notable new paper by Christine S. Scott-Hayward concerning a too-rarely examined component of the federal criminal justice system. Now available via SSRN, here is the abstract:

More than 95 percent of people sentenced to a term of imprisonment in the federal system are also sentenced to a term of supervised release.  Since it was first established in the late 1980s, nearly one million people have been sentenced to federal supervised release. The human and fiscal costs of this widespread imposition are significant.  Supervised release substantially restricts an individual’s liberty and people on supervised release receive diminished legal and constitutional protections.  The fiscal costs of supervised release are also high, particularly when almost one third of people on supervised release will have their supervision revoked and will return to prison.

Despite the importance of supervised release, little is known about how and why sentencing judges impose supervised release and what purpose it is supposed to serve in the federal criminal justice system.  In most cases, supervised release is not mandatory and yet judges consistently fail to exercise their discretion in this area and impose supervised release in virtually all cases.

Based on an empirical study of sentencing decisions in the Eastern District of New York, this article uncovers previously unidentified features of supervised release.  It finds that judges widely impose supervised release without any apparent consideration of the purpose served by the sentence.  This article argues that supervised release is over-used and proposes a new framework for its imposition to ensure that courts only impose supervised release on people who need it.

February 23, 2014 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack

Friday, February 21, 2014

SCOTUS permits additional briefing on CP restitution issues in light of Burrage

The Supreme Court issued a notable two-sentence order today in Paroline v. US, the pending case on child porn restitution sentences.  Here is the text of the order:

The motion of respondent Amy Unknown for leave to file a supplemental brief after argument is granted.  The other parties may file supplemental briefs, not to exceed 3,000 words each, addressing the effect of our decision in Burrage v. United States, 571 U. S. ___ (2014), on this case, on or before Friday, March 7, 2014.

Lyle Denniston over SCOTUSblog has an extended discussion of this intriguing new development, which includes these passages:

The Court, it appears, did not stir up this new issue on its own.  The day after the Burrage decision had been issued, counsel for Doyle Randall Paroline sent a letter to the Court suggesting that this ruling should apply to his client’s case.  The new “Amy Unknown” brief came in response to that, and argued that there were fundamental differences involved.

Two different laws are at issue in the two cases, but the Court’s new action seemed to suggest that there may be some overlap in how to interpret them....

In a letter to the Court Clerk on January 29, Houston attorney Stanley G. Schneider noted the new Burrage ruling, and said he believed it “should apply to the arguments made on behalf of Mr. Paroline.”  The letter offered to submit a brief on the point.

In the supplemental brief, filed on February 11, lawyers for “Amy Unknown” disputed that suggestion, saying that the Court was obliged to interpret a criminal law like the heroin sentence enhancement law in a strict way, but that there is a long tradition of interpreting remedies for torts (legal wrongs) more expansively.  In particular, the new brief said, there is strong authority for the concept of assessing the full amount of damages for a tort to those who had contributed to the harms done.

The supplemental filing accepted by the Supreme Court today from lawyers for “Amy Unknown” is available at this link.

A few (of many) prior posts on Paroline and child porn restitution issues:

February 21, 2014 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Thursday, February 13, 2014

Feds to appeal probation sentence given to tax-dodging Beanie Babies billionaire

As reported in this new AP article, the "U.S. attorney's office in Chicago said Thursday that it's appealing a sentence that included no prison time for the billionaire creator of Beanie Babies for hiding at least $25 million from U.S. tax authorities in Swiss bank accounts."  Here is more:

At H. Ty Warner's sentencing last month, Judge Charles Kocoras heaped praise on the toymaker for his charitable giving, declaring society was better served by letting him go free and giving him two years' probation instead of sending him to prison. Warner had faced up to five years in prison.

Warner, 69, of Oak Brook, Ill., was one of the highest profile figures snared in a long-running investigation of Americans concealing funds in Swiss bank accounts. Others convicted of squirreling away less money in Switzerland than Warner have done prison time. Warner, who grew up poor, created the animal-shaped Beanie Babies in the mid-'90s, triggering a craze that made Warner spectacularly rich. Forbes recently estimated his net worth at $2.6 billion.

A one-page notice of appeal signed by U.S. Attorney Zachary Fardon was filed with the U.S. 7th Circuit Court of Appeals, and a full brief will be submitted later. Justice officials in Washington still must OK the appeal, but that's usually considered a formality.

At a Jan. 14 sentencing hearing, Kocoras spent most of his 20-minute explanation of the sentence expressing admiration for Warner. He also said the businessman had already paid a price in "public humiliation." In addition to probation, Kocoras ordered Warner to do 500 hours of community service at Chicago high schools. Earlier, Warner agreed to pay $27 million in back taxes and interest, and a civil penalty of more than $53 million....

During sentencing, assistant government attorney Michelle Petersen urged Kocoras to put Warner behind bars for at least a year.  "(Without prison time), tax evasion becomes little more than a bad investment," she told him.  "The perception cannot be that a wealthy felon can just write a check and not face further punishment."

This should be a VERY interesting sentencing appeal to watch in the months ahead, and I am already super stoked to read the coming Seventh Circuit briefs from the parties concerning what will surely be differing views on what federal sentencing law demands in a case of this nature.

Prior related post:

February 13, 2014 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Trio of former governors to get behind initiative to reform California's dysfunctional death penalty

As reported in this Los Angeles Times article, "three former California governors are set to announce their endorsement Thursday of a proposed initiative sponsors say would end lengthy death penalty appeals and speed up executions." Here is more:

Former governors George Deukmejian, Pete Wilson and Gray Davis will announce at a news conference the launch of an initiative drive for signatures to qualify the proposed constitutional amendment for the November ballot.

The measure, if qualified, would ignite the second statewide debate on the death penalty in two years. A ballot proposal that would have ended capital punishment in California narrowly lost in 2012, with 48% of voters in favor and 52% against.

The new proposal would establish five-year court deadlines for deciding death row appeals, transfer most death penalty cases from the California Supreme Court to lower courts, and allow capital inmates to be spread among the general prison population. It also would require the condemned to work in prison, remove any threat of state sanctions from doctors who advise the state on lethal injection procedures, and exempt the execution protocols from a state administrative law that requires extensive public review.

California now has more than 700 people on death row, and the last inmate was executed in 2006. The state currently has no court-approved method of lethally injecting the condemned, and drugs to do so have been difficult to obtain. The state also has had trouble recruiting lawyers willing to handle capital appeals, which can take decades to be resolved in state and federal courts.

I am hoping this capital reform initiative makes the California ballot given that a majority of Californians have voted to retain the death penalty in the state. I have to believe that California voters do not want to preserve the distinctly dysfunction death penalty system it now has, and this initiative would appear to be the most efficient and effective means to make the state's system more functional.

If this capital reform initiative makes the California ballot, it will also be interesting to see how California's current governor and attorney general will chime in on the issue. My sense is that Gov Brown and AG Harris are generally opposed to an active capital punishment system, and thus they may be disinclined to support the initiative. But it should be hard for them to explain to voters why the support a dysfunction capital punishment system over a functional one.

February 13, 2014 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Wednesday, February 12, 2014

Effective Heritage analysis of federal MMs and statutory reform proposals

Earlier this week, the Heritage Foundation published this effective and informative Legal Memorandum titled "Reconsidering Mandatory Minimum Sentences: The Arguments for and Against Potential Reforms." I plan to have the students in my Sentencing class read this memo, which was authored by Evan Bernick and Paul Larkin, because it provides a very timely review of the arguments surrounding the leading modern reform proposals. And here are the "key points" highlighted by the authors in conjunction with the memo:

The U.S. Senate is considering two bills that would revise the federal sentencing laws in the case of mandatory minimum sentences.

The Justice Safety Valve Act of 2013 expands the existing sentencing “safety valve” by allowing a judge to depart downward from any mandatory minimum “if the court finds that it is necessary to do so in order to avoid imposing” an unjust sentence.

The Smarter Sentencing Act of 2013 applies only to nonviolent drug crimes and would permit a district judge to issue sentences without regard to any mandatory minimum if the court finds that the defendant meets certain criminal history requirements and did not commit a disqualifying offense.

Although the Smarter Sentencing Act takes a smaller step than the Safety Valve Act toward the revision of the federal mandatory minimum sentencing laws, such a measured approach could enhance federal sentencing policy while avoiding a number of potential pitfalls.

February 12, 2014 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Tuesday, February 11, 2014

"The Illusory Eighth Amendment"

The title of this post is the title of this notable new article by John Stinneford now available via SSRN. Here is the abstract:

Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology.  In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation.  In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect.

This dysfunctional combination of over- and underprotection arises from the Supreme Court’s use of implementation rules as a substitute for constitutional interpretation.  A growing body of scholarship has shown that constitutional adjudication involves at least two distinct judicial activities: interpretation and implementation.  Prophylactic rules are defensible as implementation tools that are necessary to reduce error costs in constitutional adjudication.

This Article contributes to implementation rules theory by showing that constitutional interpretation, defined as a receptive and non-instrumental effort to understand constitutional meaning, normally must precede constitutional implementation.  When the Supreme Court constructs implementation rules without first interpreting the Constitution, the rules appear arbitrary and overreaching because they do not have a demonstrable connection to constitutional meaning.  Such rules also narrow the scope of the Constitution itself, denying protection to any claimant who does not come within the rules.  The only way to remedy this dysfunction and provide meaningful protection across a broad range of cases is to interpret the Constitution before implementing it.

February 11, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Death Penalty Reforms, Graham and Sullivan Eighth Amendment cases, Jackson and Miller Eighth Amendment cases, Recommended reading, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Federal judges give California two additional years to deal with prison population problems

As reported in this AP article, "federal judges on Monday gave California two more years to meet a court-ordered prison population cap, the latest step in a long-running lawsuit aimed at improving inmate medical care."  Here is more about the latest chapter in the long-running federal litigation that made it to the Supreme Court a few years ago and that continues to impact California's criminal justice system in profound ways:

The order from the three-judge panel delayed an April deadline to reduce the prison population to about 112,000 inmates. California remains more than 5,000 inmates over a limit set by the courts, even though the state has built more prison space and used some private cells.

"It is even more important now for defendants to take effective action that will provide a long-term solution to prison overcrowding, as, without further action, the prison population is projected to continue to increase and health conditions are likely to continue to worsen," the judges said in a five-page opinion scolding the state for more than four years of delay.

California has reduced its prison population by about 25,000 inmates during the past two years, primarily through a law that sends lower-level offenders to county jails instead of state prisons. It also has spent billions of dollars on new medical facilities and staff, including opening an $839 million prison medical facility in Stockton last fall.

Yet in its latest ruling, the special panel of judges tasked with considering the legal battle involving overcrowding said the state has continually failed to implement any of the other measures approved by the panel and the Supreme Court that would have safely reduced the prison population and alleviated unconstitutional conditions involving medical and mental health care. The judges said the delays have cost taxpayers money while causing inmates to needlessly suffer.

However, immediately enforcing the population cap would simply prompt the state to move thousands more inmates to private prisons in other states without solving the long-term crowding problem, the judges said. Given that choice, they adopted a proposal outlined by Gov. Jerry Brown's administration that it can reach the population cap by the end of February 2016 through steps that include expanding a Stockton medical facility to house about 1,100 mentally ill inmates and freeing more than 2,000 inmates who are elderly, medically incapacitated, or who become eligible for parole because of accelerated good-time credits.

The judges said the state also has agreed to consider more population-reduction reforms in the next two years, including the possible establishment of a commission to recommend reforms of penal and sentencing laws.

Brown said the ruling was encouraging. "The state now has the time and resources necessary to help inmates become productive members of society and make our communities safer," he said in a statement.

Brown's administration said the alternative would have been to spend up to $20 million during the fiscal year that ends June 30 and up to $50 million next fiscal year to lease enough additional cells to meet the court order. With the delay, Brown said the state can spend $81 million next fiscal year for rehabilitation programs that would otherwise be spent to house inmates.

Inmates' attorneys had wanted the judges to require the state to meet the population cap by May. "We're very disappointed," said Don Specter, director of the nonprofit Prison Law Office that represented inmates in the crowding lawsuit. "We believe that there are substantial constitutional violations continuing right now, which result in prisoners suffering and dying because of prison overcrowding."...

Republican state Sen. Jim Nielsen, who once headed the state parole board, called the court order "tragic" and said it would endanger public safety. He blamed Brown, a Democrat expected to seek re-election this year, and the court for what he called a "disastrous new system that will result in the early release of many serious and violent inmates." The state should instead increase capacity in prisons and jails while investing in rehabilitation and early intervention programs, Nielsen said in a statement.

UPDATE: This Los Angeles Times article suggests that this latest federal court order might grease the path toward California finally creating a sentencing commission. Here is how the article begins:

Talk of a sentencing commission to review whom California sends to prison and for how long helped Gov. Jerry Brown win a two-year grace period from federal judges who want crowding reduced to a safe level.  But there is no official move by the governor's office or Legislature to create one.

Brown's office was quick to point out Monday's federal court order giving the state until early 2016 to reduce crowding notes that the state only "will consider the establishment of a commission to recommend reforms of state penal and sentencing laws." Spokesman Jim Evans noted that was not a "promise" to create such a commission.

The proposal for a sentencing reform came from Senate leader Darrell Steinberg(D-Sacramento), who included it in a September 2013 letter to the federal judges supporting Brown's request for more time to deal with crowding.

February 11, 2014 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

Monday, February 10, 2014

New York Times editorial makes pitch for "Mercy in the Justice System"

The New York Times published this notable editorial today calling for a serious fix to the broken federal clemency system.  Here are excerpts:

The constitutional provision that gives the president virtually unlimited authority to grant clemency was not an afterthought.  The founders understood very well that there could be miscarriages of justice even under the rule of law.  By allowing the president to commute unjust sentences or pardon deserving petitioners who had served their time, they sought to ensure that the workings of the courts could be tempered with mercy.

Presidents Jefferson, Madison, Monroe, Lincoln, and Truman viewed the clemency process as a central mission of the office. But the concept of mercy went out of fashion by the 1980s, when the country embarked on a mandatory sentencing craze that barred judges from exercising leniency when it was clearly warranted and placed the justice system almost entirely in the hands of prosecutors.  As a consequence, even first-time offenders were largely viewed as beyond redemption.

These laws drove up the prison population 10-fold and filled the jails with young, low-level drug offenders who were confined far longer than their offenses warranted.  They also created a large and growing class of felons, who are trapped permanently at the margins of society by postprison sanctions — laws that bar them from jobs and housing, strip them of the right to vote and make it difficult for them to obtain essential documents like driver’s licenses.

The perpetual punishment model of justice has had far-reaching consequences.  Politicians stayed as far away from clemency as they could, fearing that voters would view them as soft on crime.  Meanwhile, at the Justice Department, the clemency process — which had been a cabinet-level responsibility — fell under the authority of prosecutors who seemed to view even reasonable lenience as a threat to the prosecutorial order.  The time required to handle clemency applications went from months to years; the backlog grew; the stream of mercy that had once flowed began to dry up.

The clemency system, in other words, is in a state of collapse.  The Justice Department admitted as much last month, when the deputy attorney general, James Cole, asked the criminal defense bar to help the department find suitable candidates for clemency among the many thousands of people who were casualties of the mandatory-sentencing era....

The Justice Department’s sudden interest in the clemency problem is good news, but asking defense lawyers for help is a haphazard approach.  What’s needed is wholesale reform of the department’s pardon office, which has proved itself ineffective and incompetent, partly because the current process relies on the department to evaluate its own work.

One sound idea is to create a clemency review panel outside the Justice Department, perhaps as a part of the executive office.  Mr. Obama could form an advisory board, or reconfigure the pardon office to include defense lawyers, sociologists and other experts who would bring a broader perspective to the issue.  The goal would be to give the president unbiased information that would enable him to exercise fully this important aspect of executive power.

February 10, 2014 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (20) | TrackBack

"Fewer prisons — and yet, less crime"

Prison mapThe title of this post is the headline of this lengthy new piece by Detroit Free Press columnist Brian Dickerson. The piece highlights the work of one GOP state legislator and details that Michigan's recent reductions in its prison populations has not been followed by a significant crime increase. Here are excerpts:

Americans are weary of paying for prisons. After stuffing more and more people behind bars for more than two decades, the vast majority of states, including Michigan, have taken steps in recent years to reduce both the number of people they imprison and the length of time offenders remain incarcerated.

As prison populations fall, moreover, crime rates are following suit. Nobody has proved a causal relationship between the two trends, but the fact that some of the biggest reductions in crime have occurred in states that slashed their inmate populations most dramatically has debunked the presumption that public safety depends on lengthy sentences and stingy parole policies.

States that spent the 1980s and ’90s building more and bigger penitentiaries have found a better return in programs designed to divert offenders from prison, and smooth re-entry for those who’ve served their time. Politicians on the front lines say the accompanying shift in voter attitudes has been nearly as startling as the thaw in public sentiment toward same-sex marriage.

State Rep. Joe Haveman, a Holland Republican who chairs the House Appropriations Committee and has made sentencing reform a quietly messianic crusade, tells fellow lawmakers worried about looking soft on crime that voters understand that locking up more offenders is a dead end. “This movement wouldn’t be taking place if the people of this country didn’t realize we’ve made some mistakes,” Haveman says. “I come from the second-most conservative district in the state and the third most conservative county in the country,” Haveman says, “and nobody’s saying I’m wrong about reducing our prison population.

“This isn’t just good policy,” he adds, “this is where the public wants us to go.”...

In a study released last year, the Pew Center for the States reported that Michigan’s rate of incarceration plummeted 12% between 2007 and 2012, to 441 prisoners per 100,000 residents. During the same five-year interval, reported crime dropped 17%, mirroring a national decline.

It’s hard to pin either trend to a single factor, but corrections experts point to Michigan’s relaxation of its notorious “650-lifer law,” which for two decades mandated a life prison sentence for anyone convicted of possessing more than 650 grams of cocaine or heroin. In 1998, then-Gov. John Engler signed bills permitting lesser sentences for future drug offenders and allowing those already serving life terms for drug offenses to seek parole.

Michigan’s change — the amended law allowed 650-lifers to seek parole after 20 years — was a modest one. But it anticipated a nationwide retreat from the draconian drug penalties that many states put in place during the 1970s and ’80s, setting off a slow but steady decline in the percentage of state prisoners incarcerated for possessing or selling drugs.

Michigan corrections officials also credit a decrease in the number of offenders sentenced to prison for all crimes, a slight increase in paroles, and changes in parole supervision that resulted in fewer parolees being returned to prison for minor parole violations....

Haveman, who spearheaded the passage of a 2012 bill that allows more juvenile offenders to expunge their criminal records if they stay out of legal trouble [is] working to revive a state sentencing commission that would be empowered to propose a new, data-driven scheme of criminal penalties modeled on best practices nationwide. But Haveman’s fellow Republicans remain fearful of going too fast, especially in an election year.

Last year, after the U.S. Supreme Court ruled that mandatory life sentences for juvenile offenders violated the constitutional ban on cruel and unusual punishment, Haveman introduced legislation that would allow Michigan inmates already serving life sentences for crimes that they committed as teens to seek new sentences consistent with the court’s decision.

But state Attorney General Bill Schuette insists that only juveniles sentenced since the high court’s ruling in Miller v. Alabama are entitled to the relief provided by the justices. Last week, Haveman’s Republican colleagues in the House agreed, adopting his bill only after the provision authorizing parole hearings for current juvenile lifers had been stripped out....

Haveman, whose western Michigan district is ground zero for the region’s Dutch Christian Reformed conservatives, is an unlikely champion for corrections reform. A former executive director of the Holland Home Builders Association, he credits the late state Sen. William Van Regenmorter, an Ottawa County conservative who earned national recognition for his advocacy on behalf of crime victims, with sparking his interest in criminal justice and prisons.

But Haveman says he’s been equally influenced by relationships that he and his wife have formed in the course of mentoring paroled inmates in a re-entry program sponsored by their church. That experience, supplemented by Haveman’s visits with corrections workers and inmates at 31 of Michigan’s 32 correctional facilities, convinced Haveman that he had a lot in common with many of those behind bars.

“I certainly was a dumb teenager, and I made mistakes,” Haveman said. “But if I’d grown up with the policing and enforcement policies that are in place today ... well, I’m not sure I’d be in the state Legislature.”

February 10, 2014 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Sunday, February 09, 2014

Nebraska Supreme Court gives Miller retroactive impact with new statutory law

As reported in this local article, headlined "Nebraska Supreme Court ruling could affect 27 teen murder cases," late last week the Nebraska Supreme Court resolved how the SCOTUS Eighth Amendment ruling in Miller concerning juve LWOP sentences would be applied in the Cornhusker State. Here are the details:

The Nebraska Supreme Court issued precedent-­setting decisions Friday that gave hope to 27 prison inmates serving life terms for murders they committed as juveniles.  Nebraska's high court ruled that three Omaha men who were convicted when teenagers were unconstitutionally sentenced to life in prison without the possibility of parole.  While the Supreme Court upheld their murder convictions, it ordered that all three be given new sentences....

The three inmates will return to Douglas County District Court to be resentenced under a law passed last year that allows sentences from 40 years to life.  The new law also requires judges to consider factors that could mitigate the youth's responsibility....

Although the Nebraska court ruled largely in favor of the inmates on the constitutional issues, it rejected arguments that sought to remove life as an option during resentencing. Nor was the court in unanimous agreement on all of the issues involving juvenile killers.  In a dissent, two of the judges said the U.S. Supreme Court's decision should not apply to inmates who long ago lost their direct appeals....

Nebraska has 27 inmates serving life for homicides committed when they were younger than 18.  The oldest is Luigi Grayer, 58, who was 15 in 1970 when he killed an Omaha woman....

Assistant Attorney General James Smith argued that Nebraska's sentencing law didn't violate the Miller ruling because the juveniles were sentenced to life in prison, not life “without parole.”  Under Nebraska's system, such inmates would have to get their sentences reduced to a term of years by the Nebraska Board of Pardons before earning parole. Having to first win executive clemency is not the same as parole, the high court ruled, rejecting the state's argument.  In other words, a life sentence effectively means life without parole....

The second pivotal question before the court was whether the Miller decision applied to inmates whose convictions had already been upheld on appeal.  Because the high court found that the Miller ruling resulted in a “substantive” change to how juvenile killers must be sentenced, it found that the ruling applied retroactively to Mantich.  The Nebraska judges quoted from an opinion of the Iowa Supreme Court, which also determined that juvenile killers should get new hearings.

Via How Appealing, here is additional coverage of these rulings and links to the decisions:

The Lincoln Journal Star reports that "Nebraska high court vacates life sentences of 3 men" [and] the Supreme Court of Nebraska  three decisions applying the U.S. Supreme Court's 2012 ruling in Miller v. Alabama  [are] herehere, and here.

February 9, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Thursday, February 06, 2014

Opposition by NAAUSA to Smarter Sentencing Act now garnering (too?) much attention

Late last week, Bill Otis over at Crime & Consequences complained in posts here and here about the lack of media coverage regarding the expressed opposition by the National Association of Assistant United States Attorneys (NAAUSA) to statutory sentencing reforms endorsed by Attorney General Eric Holder.  Based on this new reporting from The Huffington Post, headlined "Drug Warriors Reject Obama Administration's Call For Softer Sentences," it seems that NAAUSA's actions are now garnering considerable media attention.  Here is part of the HuffPost story with this new media reality highlighted:

A group of federal prosecutors is criticizing the Department of Justice’s support for legislation that would soften U.S. drug sentencing policies.

The National Association of Assistant United States Attorneys, an organization representing about 1,300 of the 5,600 federal prosecutors, sent a letter to Attorney General Eric Holder last week objecting to his endorsement of the Smarter Sentencing Act. The bipartisan Senate bill would lighten prison sentences for people convicted of nonviolent drug offenses.

The letter, signed by NAAUSA president and assistant U.S. attorney Robert Gay Guthrie, argues that the U.S. should resist calls to reform its mandatory minimum laws, which require judges to sentence certain drug defendants to lengthy prison terms, even if the judge considers those sentences excessive.

In the letter, Guthrie insists that the “merits of mandatory minimums are abundantly clear," insisting that they reach "only to the most serious of crimes" and "target the most serious criminals."...

Guthrie did not respond to an interview request, and a NAAUSA representative told HuffPost that the organization had been overwhelmed with media attention and wouldn't be able to respond until Friday at the earliest.

I fear I may be part of the media that is overwhelming NAAUSA with attention, as I made a request late last week through the NAAUSA website for more information about its survey of federal prosecutors concerning federal mandatory minimum sentencing provisions.  As of this writing, I have not heard back from NAAUSA, nor have I been able to find out any new information about the survey.

Interestingly, though, this HuffPost article seems to have gotten some special access to the results of the NAAUSA survey.  Specifically, the HuffPost piece reports on the NAAUSA survey with a number of details that I have not previously seen publicly reported (and about which I am a bit suspicious):

An online poll conducted by the group [NAAUSA] found that just 15 percent of the nearly 650 federal prosecutors surveyed supported the Smarter Sentencing Act, while more than 60 percent opposed it....

The group dove into the debate over mandatory minimums after conducting its online survey in early November.  According to that survey, more than 80 percent of assistant U.S. attorneys interviewed don’t believe the criminal justice system is "broken," as Holder suggested in a speech in 2013.  And more than three-quarters of those surveyed said they don’t believe that the justice system disproportionately punishes people of color.

I am a bit suspicious about this recounting of the NAAUSA survey results because I think the survey may have asked generally about mandatory minimum reforms being proposed in Congress and not only about the Smarter Sentencing Act.  The SSA, significantly, does not eliminate any mandatory minimums, it just cuts their lengthy in drug cases; other bills about which NAAUSA may have asked call for much more significant reform of all existing federal mandatory minimums.  I remain eager to actually see the actual survey and the result assembled by NAAUSA because I want to be sure that the specifics of the SSA, and not just mandatory minimum reforms in general, were a focal point of the responses now that the SSA appears to be the main sentencing reform bill getting traction in Congress.

A few recent related posts:

February 6, 2014 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (32) | TrackBack

Saturday, February 01, 2014

Two notable new Sentencing Project reports on sentencing reform and prison closings

This past week, The Sentencing Project released two notable short reports on state sentencing reforms and prison closings.  Both reports are linked from this webpage, where the reports are noted and summarized in this way: 

The Sentencing Project released two reports that highlight states downsizing prison systems and adopting sentencing policy reforms. Our research documents a three-year trend of prison closings that produced a reduction of 35,000 beds, including six states reducing capacity by 11,000 beds in 2013.

On the Chopping Block 2013 documents state prison closures and attributes the trend to several factors:

  • A declining prison population in many states
  • State fiscal constraints
  • Sentencing and parole reforms in the areas of drug policy, diversion programs, and reductions in parole revocations to prison

The State of Sentencing 2013 documents reforms in 31 states in both the adult and juvenile justice systems, including:

  • Expanding alternatives to incarceration for drug offenses
  • Policies to reduce returns to prison for supervision violators
  • Comprehensive juvenile justice measures that emphasize prevention and diversion

February 1, 2014 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, January 31, 2014

Professor/practitioner perspective on DAG Cole's puzzling clemency conversation

Nearly everyone I know invested in the modern debate over federal clemency policies and practice have been intrigued and puzzled by the clemency comments made by Deputy Attorney General James Cole yesterday at the New York State Bar Association Annual Meeting (basis here and here). Helpfully, Professor Mark Osler agreed to write up his thoughts for posting here in order to provide a thoughtful perspective on that DAG Cole's comments might mean and portend:

Since starting a federal commutations clinic a few years ago, I’ve become fascinated by the clemency process. For those of us who care deeply about the constitutional pardon power, the speech by Deputy Attorney General Jim Cole in New York was a bombshell. In short, Cole announced that President Obama’s grant of eight commutations in December was just a “first step,” and that “there was more to be done.”  This isn’t subtle signaling; it is a bold and admirable announcement that the administration plans to use the pardon power systemically to address over-incarceration in narcotics cases. This is great news for those serving such sentences, sure, but it also is a remarkable moment for the pardon power itself, which has not played such an important and principled role in the justice system for decades.

There are some open questions, though. Cole said the December commutations were a “first step,” and outlined generally what the second step will be — an apparent move to funnel many more cases through the existing process. Cole described three parts of this process. First, the Bureau of Prisons will advise inmates of their right to petition for clemency and then direct inmates who respond to bar associations that are willing to help prepare petitions. Second, bar associations will then coordinate the preparation of these petitions. Third, a member of Cole’s staff will coordinate all of this.

If it works, this will result in a flood of petitions being sent to the federal pardon attorney, a DOJ functionary. Therein lies the rub. The pardon attorney, and the rest of the process between the pardon attorney and the President, has hardly been a model of efficiency. In December, those eight commutations and thirteen pardons that were granted were dwarfed by what currently clogs the pipeline — over 3,500 petitions for clemency are currently unresolved. Presumably, these new petitions will take their place at the bottom of that large pile.

At best, this will all work out somehow — there might be a plan to improve the process that we don’t know about. At worst, Cole is waving more traffic onto a jammed freeway, without first clearing the wrecks and opening the exit ramps.

Generating more clemency petitions is a good thing, but it needs to be accompanied by an administration plan to process and grant more petitions. Gerald Ford did this efficiently by creating a Presidential Clemency Board, which evaluated thousands of clemency petitions from Vietnam-era draft evaders and Army deserters. Ford’s Board did this in exactly one year, at low cost. That model should be used here. If the freeway isn’t moving, adding more cars won’t help much.

January 31, 2014 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Will Tea Party players (and new MMs) be able to get the Smarter Sentencing Act through the House?

I am quite pleased and excited to see that yesterday the Smarter Sentencing Act (SSA)received significant Republican support within in the Senate Judiciary Committee, with Senators Senators Mike Lee (R-Utah), Jeff Flake (R-Arizona), and Ted Cruz (R-Texas) voting in support of significant reforms to modern drug sentencing rules. Given that there are three other Tea Party Caucus Senators (Jerry Moran (R-Kansas), Rand Paul (R-Kentucky), and Tim Scott (R-South Carolina), I am relatively hopeful that establishment Republicans may not be able to prevent the SSA's passage in the full Senate.

Unfortunately for supporters of drug sentencing reform, establishment Republicans are in control in the House of Representatives, and I assume House Speaker John Beohner and/or other House leaders could quash the SSA if an whenever they might want. But what I do not know, either practically or politically, is whether establishment Republicans in the House want to kill the SSA and/or whether Tea Party players in the House are as eager to see this bill become law as some in the Senate were.

Adding to the practical and political intrigue is the intriguing fact that, as explained in this article, there are now some new mandatory minimums travelling with the SSA thanks to an amendment by the establishment Republicans on the Senate side:

The Senate Judiciary Committee approved the Smarter Sentencing Act of 2013 by a wide margin Thursday, taking a major step toward reducing mandatory drug-related sentences. Amendments attached to the bill, however, would also establish new mandatory sentences for sex crimes, domestic violence and terrorism.

The bill is sponsored by Senate Majority Whip Dick Durbin, D-Ill., and Sen. Mike Lee, R-Utah, and has significant bipartisan support. Its primary aim is to allow greater sentencing flexibility and would reduce various drug-related mandatory minimums from five, 10 and 20 years to two, five and 10 years. It would also allow prisoners with crack cocaine convictions to have their punishments revisited in light of the 2010 law that lessened penalties for the drug.

In a frustrating blow to some reformers, committee members adopted three amendments from Sen. Chuck Grassley, R-Iowa, that would add the new minimum sentences. Committee members voted 15-3 to establish a mandatory minimum sentence of five years for federal sexual abuse crimes and 15-3 to created a 10-year mandatory minimum sentence for interstate domestic violence resulting in death of the victim.

Though I have a general disaffinity for any new mandatory minimums, I am ultimately pleased by additions to the SSA that Senator Grassley added if they will aid passage of the bill. The drug mandatory reductions in the amended SSA would impact tens of thousands of federal cases every year, whereas the new mandatory minimums would likely impact only a few dozen.  I am hopeful that the added minimums might make it that much easier for establishment Republicans to vote for the SSA and for House leaders to bring the bill up for a vote.  (My gut instinct is that perhaps as many as 300 members of the full House would vote for the amended version of the SSA if it gets to a floor vote, but I remain worried it might never do so because of the establishment Republican forces eager to keep this part of the federal government big.) 

Some recent and older posts about the "new politics" of sentencing reform:

January 31, 2014 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, January 30, 2014

Deputy AG Cole's remarkable remarks to the NYSBA

Via an early New York Times article, I have already reported here on some of the clemency comments delivered today byDeputy Attorney General James Cole at the New York State Bar Association Annual Meeting.  But i have now had a chance to review the whole text of the speech delivered by Deputy AG Cole, which can be accessed here, and anyone interested in federal sentencing policy and reform should read the whole text.  Here are just a few sections that really caught my attention as a sentencing geek:

I want to talk with you today about the crisis we have in our criminal justice system. A crisis that is fundamental and has the potential to continue to swallow important efforts in the fight against crime. This crisis is the crushing prison population....

Over half of the federal prison population is there for drug offenses.  Some are truly dangerous people, who threaten the safety of our communities and need to be taken off the streets for a long time.  But others are lower level drug offenders, many with their own drug abuse issues, who fall into the all too common vicious cycle of drug abuse, crime, incarceration, release — and then the cycle repeats.

In addition, there is a basic truth that dollars are finite. Every dollar we spend at the Department of Justice on prisons — and last year we spent about $6.5 billion on prisons - is a dollar we cannot spend supporting our prosecutors and law enforcement agents in their fight against violent crime, drug cartels, public corruption, financial fraud, human trafficking, and child exploitation, just to mention a few.  In other words, if we don’t find a solution to the federal prison population problem, public safety is going to suffer.

Recognizing this dynamic, the Justice Department has been working hard to come up with solutions to stem the tide....

All of these Departmental efforts recognize the need for a broader, smarter approach to criminal justice.  We believe these efforts enhance our ability to protect our communities and maximize public safety.  These efforts not only ensure that we continue to be “smart on crime” from a limited resource perspective, but they also help to ensure that federal laws are enforced fairly.

And embedded in this issue of fairness is the consideration of sentence reductions for those who, at an earlier time, encountered severe and inflexible sentencing laws.

This brings me to another issue I want to address with you today and ask for your help. The issue is executive clemency, particularly commutation of sentence.  Commutation of sentence is an extraordinary remedy that is rarely used.  But it may be available in certain circumstances, including when an individual has a clean record in prison, does not present a threat to public safety, and has been sentenced under out-of-date laws that have since been changed, and are no longer seen as appropriate.

As I said earlier, our prisons include many low-level drug offenders.  Now, let there be no mistake, even the low-level drug offenders cause harm to people through their criminal actions and many need to be incarcerated. I don’t want to minimize the impact of their behavior.  Our prosecutors worked diligently, along with law enforcement agents, to collect evidence and charge these defendants, and then fairly and effectively obtained their convictions. T hey were properly held accountable for their criminal conduct. However, some of them, because of the operation of sentencing laws on the books at the time, received life sentences, or the equivalent of a life sentence, for limited conduct. For our criminal justice system to be effective, it needs to not only be fair; but it also must be perceived as being fair.  These older, stringent punishments, that are out of line with sentences imposed under today's laws, erode people’ s confidence in our criminal justice system....

[A]side from legislation, the President also has the ability to take executive action to positively impact the criminal justice system. A little over a month ago, the President commuted the sentences of 8 men and women who were sentenced under severe — and out of date — mandatory minimum sentencing laws....

But the President’s grant of commutations for these 8 individuals is only a first step. There is more to be done, because there are others like the eight who were granted clemency. There are more low-level, non-violent drug offenders who remain in prison, and who would likely have received a substantially lower sentence if convicted of precisely the same offenses today. This is not fair, and it harms our criminal justice system.

To help correct this, we need to identify these individuals and get well-prepared petitions into the Department of Justice. It is the Department’s goal to find additional candidates, who are similarly situated to the eight granted clemency last year, and recommend them to the President for clemency consideration.

This is where you can help. We are looking to the New York State Bar Association and other bar associations to assist potential candidates for executive clemency. We envision that attorneys will assist potential candidates in assembling effective and appropriate commutation petitions — ones which provide a focused presentation of the information the Department and the President need to consider — in order to meaningfully consider clemency for similarly situated petitioners. You each can play a critical role in this process by providing a qualified petitioner — one who has a clean record in prison, does not present a threat to public safety, and who is facing a life or near-life sentence that is excessive under current law — with the opportunity to get a fresh start.  We anticipate that the petitioners potentially eligible for consideration would include: non-violent, low-level drug offenders who were not leaders of — nor had any significant ties to — large-scale organizations, gangs, or cartels. We would also look for petitions from first-time offenders or offenders without an extensive criminal history.

January 30, 2014 in Clemency and Pardons, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack