Friday, August 30, 2013

Shouldn't ALL federal defendants facing long mandatory minimum sentences seek postponements?

The question in the title of this post is prompted by this notable new federal sentencing piece at ThinkProgess headlined "Judge Postpones Sentencing Until Congress Deals With Mandatory Minimums Reform, Predicts Passage Likely." Here are the details:

In May, a Colorado defendant facing ten years in prison for cocaine possession persuaded a federal judge to hold off on his sentencing, on the possibility that Congress would soon amend federal sentencing law and his prison term would not be quite so draconian. Weighing the likelihood that the the “Safety Valve Act” proposed by bipartisan coalitions in both houses of Congress to give judges more discretion in drug sentencing would pass soon or ever, Judge William J. Martinez concluded that “the balance of the equities and the interests of justice weigh in favor of continuing the date of defendant’s sentence hearing.”

The Court acknowledges that the Act is still in the early stages of legislation and, given the ineptitude of the current Congress, any guess as to whether it will progress and, if so, how quickly, would be pure speculation. However, it is notable that a co-sponsor of the Act in the Senate, Patrick Leahy, is the Chairman of the Senate Judiciary Committee, which increases the likelihood that the Act will at least be brought for a vote in that Committee. Moreover, the Act has bi-partisan support in both the House and the Senate, which significantly increases its chances of passage.

Since then, odds have begun to look even better that the act could pass Congress, if, as Judge Martinez notes, Congress is capable of overcoming its own “ineptitude.” Unlikely interests including the American Legislative Exchange Council and the world’s largest association of correctional officers have endorsed mandatory minimum reform, and U.S. Attorney General Eric Holder brought attention to the problem in an address announcing he would use his own office’s power to limit mandatory minimum sentences.

This week, another defendant in Colorado asked a federal judge to postpone his own sentence. He is facing a statutory minimum of 20 years in jail for conspiracy to distribute cocaine. “Given Mr. Chitty’s age and poor health, such a sentence is likely to translate into a life sentence,” his lawyer argued....

Martinez’s decision to postpone sentencing until November is the latest creative tactic aimed at limiting the burden on both defendants and the prison system of mandatory minimum sentences.

As Martinez points out, defendant Andrew Bartholomew will be held in pre-trial detention until the sentencing regardless, and “[t]he fact that he may end up serving a greater portion of such sentence in pre-trial custody of the United States Marshall rather than post-judgment custody of the Bureau of Prisons is immaterial to the Court.” But it is only a stop-gap measure, and demonstrates his confidence that Congress can accomplish this one, bipartisan aim.

If and whenever a federal defendant is already incarcerated pending sentencing, there would seem to be no obvious public safety risk created by the postponement of final sentencing pending possible (and seemingly likely?) federal sentencing reform.  Moreover, given how extraordinarily difficult it has been for any crack defendants sentenced (even just days or weeks) before the Fair Sentencing Act became law to benefit from lowered statutory minimum sentences, I think all defendants facing mandatory minimum sentencing terms (and competent defense attorneys) would be wise to consider seriously any and every possible legal means to delay for as long as possible their date of sentencing.

I can understand why many federal prosecutors and at least some judges would resist efforts to postpone any scheduled sentencings based merely on the possibility of coming legislative reforms.  But given that all federal prosecutors and most judges have been so resistant to allowing already-sentenced federal defendants to benefit from subsequent legislative reforms in the crack context, I have a difficult time seeing really strong arguments for why federal defendants with reasonable claims that they could benefit from pending federal sentencing bills (especially those defendants who are already incarcerated) need to have their sentences imposed now if there is any real chance that such sentences will be repealed or reformed in the near future.

August 30, 2013 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

"Protesters Demand Montana Judge Resign Over Rape Sentencing"

The title of this post is the headline of this New York Times report on the continuing controversy over what seems to be a disturbingly lenient state sentence for a child rape conviction.   Here are some of the latest developments in a story that seems to have become a cause for CNN and other media outlets:

Angry that a Montana judge sentenced a former teacher who had admitted to raping a 14-year-old student to only a month in jail, several hundred people gathered outside the Yellowstone County Courthouse in Billings on Thursday, demanding that the judge resign. The victim committed suicide three years after the rape, just before her 17th birthday.

The decision by Judge G. Todd Baugh of State District Court on Monday to suspend the teacher’s 15-year prison term, combined with remarks he made about the rape victim during the proceeding, has sparked outrage in Montana and around the country, with online petitions gathering more than 30,000 signatures in a few days. During the sentencing, Judge Baugh said the victim “seemed older than her chronological age” and was “as much in control of the situation” as the teacher.

The death of the victim, Cherice Morales, who was a student of Stacey Dean Rambold, contributed to delays in the prosecution of the case, which was originally filed in 2008.

Judge Baugh later apologized for his remarks, telling The Billings Gazette: “I don’t know what I was thinking or trying to say. It was just stupid and wrong.” He defended the one-month sentence, however, and in doing so made a remark that further angered many protesters. “Obviously, a 14-year-old can’t consent,” he said, but then added: “I think that people have in mind that this was some violent, forcible, horrible rape. It was horrible enough as it is just given her age, but it wasn’t this forcible beat-up rape.”

Marian Bradley, who heads the Montana chapter of the National Organization for Women and helped organize the rally on Thursday, said that the judge needed to step aside and that state lawmakers needed to consider mandatory sentencing for convicted rapists. “It’s highly unusual to get several hundred people to show up for a protest in Billings,” said Ms. Bradley, a longtime rape crisis volunteer. “Everyone here is outraged.”...

Mr. Rambold, 54, a former technology teacher at Billings Senior High School, pleaded guilty in April to a felony count of sexual intercourse without consent. The charges were first brought in 2008, and his prosecution was deferred in 2010 after Ms. Morales’s suicide raised concerns among prosecutors that a conviction would be difficult to obtain without the victim’s testimony.

Under a three-year agreement, Mr. Rambold attended an outpatient program for sex offenders, and if he had completed it, the charges would have been dismissed. But after he violated the terms of the program last fall, prosecutors brought charges against him again earlier this year and he pleaded guilty to one count, which brought him back to court for sentencing on Monday.

Though I am troubled when folks start calling for a judge's head based on limited information about a seemingly misguided sentencing decision, it is understandable why the judge's sentencing decision here has prompted outrage given the the facts that are publically known about this case. Interestingly, as now reported in this new Billings Gazette article, "Judge G. Todd Baugh, who has drawn international criticism for sending a convicted rapist to prison for only 30 days, issued a sentencing addendum Thursday afternoon, offering a formal explanation of his decision in the case." That three-page addendum may not end the protests, in part because Judge Baugh says in this Addendum that some key facts influencing the sentencing decision that cannot be publically disclosed.

Long-time readers will not be surprised to hear me suggest that Montana lawmakers not respond to one ugly case by passing new mandatory sentencing statutes.  In lots of other settings, we can and do reasonably expect and hope that appellate review will provide a means to correct very wrong trial court rulings.  Intriguingly, this new CNN article reports that the local prosecutor here is considering an appeal and seems to believe that there already was a statutory provision that would have required at least a two-year prison term for the defendant here.  If the sentencing decision causing outrage and protests cannot be reviewed under existing Montana law, I hope that problem becomes the focal point of any legislative reform rather than the creation of new mandatory minimum sentencing statutes.

August 30, 2013 in Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (20) | TrackBack

Thursday, August 29, 2013

DOJ and Obama Administration (finally) report plans concerning federal marijuana enforcement

As reported in this Washington Post piece, today the Obama administration "said it will not stand in the way of Colorado, Washington and other states where voters have supported legalizing marijuana either for medical or recreational use, as long as those states maintain strict rules involving distribution of the drug." Here is more:

In a memo sent Thursday to U.S. attorneys in all 50 states [and available at this link], Deputy Attorney General James M. Cole detailed the administration’s new stance, even as he reiterated that marijuana remains illegal under federal law.

The memo directs federal prosecutors to focus their resources on eight specific areas of enforcement, rather than targeting individual marijuana users, which even President Obama has acknowledged is not the best use of federal manpower. Those areas include preventing distribution of marijuana to minors, preventing the sale of pot to cartels and gangs, preventing sales to other states where the drug remains illegal under state law, and stopping the growing of marijuana on public lands.

A Justice Department official said that Attorney General Eric H. Holder Jr. had called the governors of Colorado and Washington around noon Thursday to inform them of the administration’s stance.

The official said Holder also told them that federal prosecutors would be watching closely as the two states put in place a regulatory framework for marijuana in their states, and that prosecutors would be taking a “trust but verify” approach. The official said the Justice Department reserves the right to revisit the issue....

Until Thursday, the Justice Department and the White House Office of National Drug Control Policy had remained silent about those initiatives, despite repeated requests for guidance from state officials....

The issue has been percolating since Obama took office, and he has repeatedly faced questions about the tension between differing federal and state laws.

This (relatively short) official DOJ Press Release provides this account of the decision:

Today, the U.S. Department of Justice announced an update to its federal marijuana enforcement policy in light of recent state ballot initiatives that legalize, under state law, the possession of small amounts of marijuana and provide for the regulation of marijuana production, processing, and sale.

In a new memorandum outlining the policy, the Department makes clear that marijuana remains an illegal drug under the Controlled Substances Act and that federal prosecutors will continue to aggressively enforce this statute.  To this end, the Department identifies eight (8) enforcement areas that federal prosecutors should prioritize.  These are the same enforcement priorities that have traditionally driven the Department’s efforts in this area.

Outside of these enforcement priorities, however, the federal government has traditionally relied on state and local authorizes to address marijuana activity through enforcement of their own narcotics laws.  This guidance continues that policy.

For states such as Colorado and Washington that have enacted laws to authorize the production, distribution and possession of marijuana, the Department expects these states to establish strict regulatory schemes that protect the eight federal interests identified in the Department’s guidance.  These schemes must be tough in practice, not just on paper, and include strong, state-based enforcement efforts, backed by adequate funding. Based on assurances that those states will impose an appropriately strict regulatory system, the Department has informed the governors of both states that it is deferring its right to challenge their legalization laws at this time.   But if any of the stated harms do materialize — either despite a strict regulatory scheme or because of the lack of one — federal prosecutors will act aggressively to bring individual prosecutions focused on federal enforcement priorities and the Department may challenge the regulatory scheme themselves in these states.

Cross-posted at Marijuana Law, Policy and Reform

UPDATE:  Jacob Sollum has collected some of the early reactions to these developments via this piece at Forbes titled "Reactions To DOJ Marijuana Memo: Dismay, Exuberance, Skepticism."

August 29, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (7) | TrackBack

Second Circuit upholds huge securities fraud restitution award (without any real Sixth Amendment discussion)

A unanimous Second Circuit panel opinion this morning in US v. Gushlak, No. 12-1919 (2d Cir. Aug. 30, 2013) (available here) upholds a restitution award of over $17 million based on seemingly debatable fact-finding by a federal district judge.  Here is how the lengthy opinion starts and ends:

Defendant-appellant Myron Gushlak challenges, on various grounds, the May 15, 2012, restitution order entered against him in the United States District Court for the Eastern District of New York (Nicholas G. Garaufis, Judge). The order, which was entered pursuant to the Mandatory Victims Restitution Act of 1996, 18 U.S.C. § 3663A, awarded a total of $17,492,817.45 to victims for losses stemming from Gushlak's role in the manipulation of the price of a publicly traded security. We affirm....

We return to where we began, the inexpertness of most judges in most technical matters, including the forces afoot in the securities markets and their impact on the prices for any particular security at any particular time. We must therefore rely on the testimony of professionals with appropriate expertise. The district court took great pains in addressing the restitution issues over an extended period of time, requiring repeated efforts by the government to obtain a proper valuation for losses under the particular circumstances, and in light of the peculiar challenges, presented by the case before it. It relied on a qualified expert as a guide. We can identify no clear error of fact or mistake of law that the court committed in reaching, with such care, its result.

Based on a quick scan of the opinion, I see no obvious basis to fault or even question the panel's formal analysis of restitution here in Gushlak. But, as the title of this post suggests, I am quite surprised that the defendant apparently here did not argue that the Supreme Court's June 2012 opinion in Southern Union now requires reconsideration of the circuits' prior rulings that the Sixth Amendment jury trial right is not implicated by judicial fact-finding in support of statutory-based restitution punishment.

Though I am not aware of any major rulings reconsidering this Aprrendi-land issue after Southern Union, I am sure that the decision in Southern Union included significant language that provides a strong basis for such reconsideration. And, with over $17 million dollar at stake and with judicial fact-finding apparently so challenging and contestable in a case like Gushlak, I think a Sixth Amendment argument could have had at least some extra traction in a case like this.

August 29, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, August 28, 2013

Fort Hood mass murderer, Nidal Hasan, gets death penalty ... everybody happy?

This CBS News piece reports on the not-very-surprising outcome of a high-profile capital military sentencing proceeding today: "Thirteen senior Army officers have sentenced Maj. Nidal Hasan to death for carrying out the horrific 2009 shooting rampage at Fort Hood Army base."   Here is more about today's proceedings and what comes next:

The panel's recommendation will now go to a convening authority, the general responsible for assembling the capital court-martial, for review and approval. The convening authority can approve or reduce the sentence.

On Friday, Hasan was unanimously convicted on 13 charges of premeditated murder and convicted of 32 charges of attempted premeditated murder. His conviction carries a mandatory minimum sentence of life in prison and the panel was authorized to consider the death penalty.

During sentencing the government presented 20 witnesses over two days, including soldiers who were injured as well as parents, spouses, and children of those who were murdered by Hasan. Each described how the shooting has impacted their lives while Hasan, who was paralyzed in the shooting and is now confined to a wheelchair, sat about 20 feet away.

On Wednesday, in an emotional 50-minute closing statement, the government revisited the stories of each witness and then told panel, "The acts of 5 November were religiously motivated, but you should not punish him for his religion. You should punish him for his hate."

The government argued against the idea that a death sentence would result in martyrdom for Hasan. "He will never be a martyr because he has nothing to give. Do not be misled. Do not be fooled. He is not giving his life. We are taking his life. This is not his gift to God; this is his debt to society. This is not a charitable act. He is not now and never will be a martyr. He is a cold-blooded murderer," argued prosecutor Col. Michael Mulligan.

As a convicted defendant, Maj. Hasan had the right to give an unsworn statement before the court or to testify under oath. When it was his turn to present evidence at sentencing, he simply said, "the defense rests." He also declined to present a closing argument on Wednesday....

In courts martial, appellate review is mandatory and cannot be waived or withdrawn when the sentence includes death. Under military law, any sentence calling for more than one year of incarceration gets an automatic review by the Army Court of Military Review, which then goes to the Armed Forces Court of Appeals....

It has been more than 50 years since the U.S. military executed a U.S. service member. Army Pfc. John A. Bennett was the last service member to be put to death, on April 13, 1961 after being convicted of the rape and attempted murder of an 11-year-old girl.

In 1983, the Armed Forces Court of Appeals ruled that military capital punishment was unconstitutional, but it was reinstated in 1984 when President Reagan signed an executive order adopting new rules for capital courts martial. According to the Death Penalty Information Center, there have been 16 military death penalty convictions since 1984, but 11 of those sentences have been overturned. The remaining five service members remain on death row....

On Tuesday his stand-by defense counsel submitted a motion to present mitigating evidence that could help Hasan in sentencing.  Hasan objected and Judge Osborn denied the motion, stating a pro-se defendant in the military justice system "is the captain of his own ship."

Col. Joseph Cerreto, a retired former Judge Advocate General, said he cannot imagine that appellate counsel will not be appointed to prosecute the appeal. "Whether Hasan wants it or not, no court is going to order the death penalty or life incarceration without parole without appellate counsel having briefed and argued the case," he said.

Even if Hasan does not cooperate, appointed lawyers can note his opposition in their briefs to the court and then go ahead and raise any legal issues they deem appropriate.

As this story makes clear, the prosecutors and seemingly many connected to the victims of Hasan's crimes were hoping to get a death sentence in the case.  But reports have also indicated that Hasan himself wanted to be sentenced to death.  Thus the question in the title of this post: is anyone upset that Hasan has been sentenced to death?

I know, of course, that death penalty abolitionists do not want to see any jurisdiction actual use the death penalty, as so I suspect there may be a few folks how are not truly happy with this outcome. Still, given than Hasan himself apparently wants to be sentenced to death and further that it seems very unlikely he will be executed anytime soon (if at all), I wonder if even abolitionist might in this kind of case at least by not all too displeased by this sentence of death.

August 28, 2013 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (17) | TrackBack

California Gov Brown finding monies for prisons seeking to avoid court-ordered prisoner release

0526-usa-jerrybrown_full_600As reported in this new Los Angeles Times article, California Governor Jerry Brown is now finally taking major new steps to deal with enduring prison crowding issues in his state.   The piece is headlined, "Jerry Brown has plan to ease prison crowding without early releases; To comply with judges' order, Jerry Brown proposes to spend from state's reserve to house excess prisoners in alternate facilities." Here are excerpts:

Gov. Jerry Brown and top lawmakers pledged Tuesday to ease prison crowding without releasing inmates early, laying out a plan to spend hundreds of millions of dollars for alternate housing.

The proposal, which has divided Democratic leaders, would pay for enough beds in privately owned prisons and other facilities to shed more than 9,600 inmates from state lockups by the end of the year, as federal judges have ordered. "This is the sensible, prudent way to proceed," Brown said at a Capitol news conference. "The plan is to find as many cells as needed."

Paying for the extra housing would drain $315 million from the state's $1.1-billion reserve over the next year. The price tag is expected to increase to $415 million for each of the following two years.

The proposal would avoid inmate releases while Brown continues fighting the order to reduce the population in state prisons, which the judges say are unconstitutionally crowded. Plans his administration previously considered could have forced the state to free about 1,000 inmates before their sentences were finished....

Brown faces an array of political challenges in pushing his plan through the Legislature, notably opposition from Senate leader Darrell Steinberg (D-Sacramento). Assembly Speaker John A. Pérez (D-Los Angeles) and Republican leaders in both houses flanked Brown for his announcement, but Steinberg was absent, saying later that he would issue his own prison plan Wednesday.

"The governor's proposal is a plan with no promise and no hope," Steinberg said in a statement. "As the population of California grows, it's only a short matter of time until new prison cells overflow." The Senate leader has called for more spending on mental health and drug treatment programs that can reduce the number of ex-offenders who return to prison, helping to lower the inmate population in the long run.

Brown and Pérez said they also would consider more long-term solutions to prison crowding, such as changes in sentencing laws. Meanwhile, the funding for alternative cells is needed, they said. "We are not going to release a single additional prisoner," Pérez said.

The proposal announced Tuesday would move thousands of offenders from state facilities to privately owned prisons in and outside of California and reopen city-owned detention facilities in Shafter and Taft, in the Central Valley. More inmates could be placed in county jails.

Law enforcement groups representing district attorneys, police chiefs, county sheriffs and others are backing the plan. "The efforts by the governor will help protect our communities," said Nevada County Sheriff Keith Royal.

More key support comes from the politically powerful prison guard union, which has strongly opposed outsourcing of inmate housing. But Brown's plan would use state guards in a privately owned prison in Kern County....

[O]n Tuesday, top Republican lawmakers said the governor was taking the right steps. "Our No. 1 responsibility is public safety," said Senate Republican leader Bob Huff (R-Diamond Bar). "We can't allow dangerous inmates on our streets."

Lawmakers have less than three weeks to consider Brown's proposal before they adjourn. The Assembly budget committee is scheduled to convene Thursday to begin discussions. Brown's effort to comply with the court order has short-circuited some of his previous plans to lower prison spending and end contracts to house inmates out of state. If the Legislature approves his proposal, prison spending will outpace state funding for higher education in the current fiscal year.

Don Specter, a lawyer for inmates who have sued the state over prison conditions, said leasing more prison space would be "an incredible waste of hundreds of millions of dollars for no benefit to public safety." He said the state should consider some early releases, by expanding the credit prisoners can earn for good behavior or freeing inmates who are elderly and sick.

August 28, 2013 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9) | TrackBack

Tuesday, August 27, 2013

In praise of the US Sentencing Commission's new "Quick Facts" series

I am very pelased to see and to be able to report that the US Sentencing Commission has launched a notable new series of reader-friendly publications.  This posting from the USSC's webpage explains:

NEW Quick Facts Publication Series Launched

The Commission presents a new publication series called "Quick Facts." These publications will give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.

I think this is a terrific new innovation coming from the USSC, and I have already learned a few things from these first two publications in the series:

August 27, 2013 in Data on sentencing, Federal Sentencing Guidelines, Offense Characteristics, Recommended reading, Who Sentences? | Permalink | Comments (0) | TrackBack

"Is it fair for sex offenders to stay listed on a registry for life?"

The title of this post is the headline of this recent lengthy article in the St. Louis Post-Dispatch. Here are excerpts:

On one side of the latest debate over Missouri’s sex-offender registry are people such as Daniel Ray Winfrey. In 1991, when Winfrey was 15, he and three others raped and murdered sisters Julie and Robin Kerry at the Chain of Rocks Bridge near St. Louis.

Winfrey testified against his co-defendants in exchange for a 30-year prison sentence. Though back in prison, he has been paroled twice since his conviction. At those times, he was free but still listed on the state’s sex-offender registry website. That website, Gov. Jay Nixon argues, is the only way for most neighbors and others to know of the potential danger while such offenders are among them.

“You wouldn’t want to know if one of these guys moved in next door?” Nixon asked last week. He was defending his veto of a bill that would remove from the website all offenders who, like Winfrey, were under 18 when they committed their crimes.

On the other side are people such as Ali Nemec’s fiancé. He was 17 when he was arrested for having child pornography on his computer. Now 24 and still listed on the registry website, he’s had difficulty at work, has been been turned away from housing and lives with his parents.

“We can’t go to a park, we can’t go to a mall. If there’s an event with our friends near a school, we can’t go,” said Nemec, 23, of St. Peters. “He made a mistake ... (but) he is not the boy that he was. There’s no reason to ruin him for the rest of his life.”

The registry is today’s ultimate “scarlet letter.” Long after they’ve served their time, sex offenders remain barred from parks and schools and limited in their employment and housing options. Their names and faces are posted on the Internet, easily accessible to friends and neighbors.

In Missouri, they stay listed for life, even if they were juveniles when they committed their crimes. The state Legislature passed this year a bill to change that. Nixon vetoed it, potentially setting up an emotionally charged veto fight next month.

The bill would remove from the sex-offender registry website hundreds of offenders such as Nemec’s fiancé and Winfrey, whose crimes were very different but who were both under 18 when they committed them. By one estimate, the bill would cull about 870 names from the more than 13,000 on the site, in addition to future offenders in the same situation.

Those offenders would still be listed on the registry itself, accessible to law enforcement and anyone from the public who requests the information. But the bill would allow the offenders to petition for complete removal from the registry starting five years after the end of their sentences.

“These kids have served their debt to society. They are adults now and haven’t done anything wrong since,” said Rep. Dave Hinson, R-St. Clair, a co-sponsor of the measure. He and others note that listed offenders have high unemployment rates because many employers won’t hire them. “We’re just trying to give them another shot at being productive citizens.”

Nixon, a Democrat, vetoed the bill in July, arguing that it makes no distinction between relatively minor offenders and those who used force or violence. In a news conference at St. Louis police headquarters last week, defending the veto amid the backdrop of uniformed officers, the governor warned that the measure could make Missouri a haven for sex offenders from other states who want to hide from their pasts....

In Missouri, and nationally, the issues connected to sex-offender registries — who should be on them, how long they should stay listed — have been in flux for years, with opposing interests battling to tighten or loosen the requirements.

The concept behind the lists is that because of the high rate of repeat offenses among sex offenders, the public needs to be warned of their whereabouts even after their sentences are served. Civil libertarians have long argued that this amounts to an unconstitutional open-ended punishment, but courts have generally upheld the registries....

Missouri’s system is tougher than some because once a person is on the list, he or she is on it for life, regardless of the severity of the original crime or the offender’s age at the time. Illinois, in contrast, has a lifetime tier and a 10-year tier, based on the details of the crime. People who commit crimes as juveniles have to register, but they aren’t listed on the registry’s public website....

Critics claim that the registry nets are cast so widely they often catch people who most would agree aren’t sexual threats. One commonly cited example are the so-called “Romeo and Juliet” offenders, who had consensual sex with teenage lovers, sometimes when they themselves were teenagers. Critics say those pitfalls in the system are especially ominous in Missouri, where juvenile crimes are listed for life.

August 27, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (29) | TrackBack

Monday, August 26, 2013

Senator Leahy looking for answers from DOJ on pot policy by September 10 hearing

Everyone eager to find out how the US Justice Department plans to deal with federal marijuana law and policy in the wake of various significant state reform efforts should now mark September 10, 2013 on their calendars.  That's because, according to this post a The BLT, on that Tuesday three weeks from now, Senator Patrick Leahy is going to convene a hearing at which he plans to ask DOJ about its plans. Here are the details:

When it comes to marijuana laws, Senator Patrick Leahy (D-Vt.) wants to know whether the U.S. Department of Justice plans to prosecute or pass.

Nearly a year after voters in two states legalized marijuana possession, the Senate Judiciary Committee chairman once again plans to ask Justice Department officials how they will handle the conflict between state and federal marijuana laws.

Leahy has invited Attorney General Eric Holder and Deputy Attorney General James Cole to testify at a September 10 hearing about Washington and Colorado legalizing small amounts of marijuana for personal use, as well 20 states and Washington D.C. legalizing medicinal marijuana.

But Holder and the Department of Justice have given no public indication of the federal government's planned response to the state initiatives. Holder, testifying in the Senate in March, said he would reveal a policy "relatively soon." In the meantime, Colorado officials told TPM last week that they believe the delay amounts to "tacit approval" from the Justice Department to implement the marijuana laws....

Leahy has written the director of the Office of National Drug Control Policy about the issue, and questioned whether state officials who license marijuana retailers are risking prosecution for carrying out their duties.

"It is important, especially at a time of budget constraints, to determine whether it is the best use of federal resources to prosecute the personal or medicinal use of marijuana in states that have made such consumption legal," Leahy said in a written statement. "I believe that these state laws should be respected. At a minimum, there should be guidance about enforcement from the federal government."

Holder drew criticism from some medical marijuana advocates for a speech earlier this month concerning mandatory-minimum sentences, which are often in play in drug cases. Holder, in his remarks, did not get into the tension between state and federal marijuana laws.

The statement announcing Senator Leahy's plans for this hearing is available at this link from the Senator's website.

August 26, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0) | TrackBack

Terrific Stateline review of states' varied applications of and reactions to Miller

Pew juveMaggie Clark over at Stateline has this notable new article (and this amazing associated resource) reviewing all the diverse ways states are deal with the Supreme Court's Miller ruling. the piece is headlined "After Supreme Court Ruling, States Act on Juvenile Sentences," and here are excerpts:

Last year, the U.S. Supreme Court ruled in Miller v. Alabama that mandatory life sentences for offenders under 18 are cruel and unusual punishment, and therefore unconstitutional. In the wake of that decision, a federal court this month ruled that ... more than 300 other Michigan juvenile lifers are entitled to a parole hearing.

Michigan is one of at least 11 states that have revisited their sentencing laws in response to the Supreme Court decision (see Stateline chart).  Generally, juvenile killers in those states will be eligible for a parole hearing after serving a mandatory minimum sentence of about 25 years.

Still, there are at least 15 states that have not yet eliminated mandatory life without parole sentences for juveniles.  In many states, legislatures and courts aren’t sure how the Miller decision should apply to offenders such ... already serving such sentences. Nationwide, there are more than 2,000 prisoners in 43 states serving life without parole sentences for crimes they committed as juveniles....

[I]n Pennsylvania, which has largest number of inmates whose sentences are covered by the Supreme Court ruling, the state Supreme Court has been considering the retroactivity question for over a year.  The court’s decision could lead to the resentencing and eventual release of over 400 convicted murderers.

In Michigan, Iowa, Illinois, Louisiana and Mississippi, judges have ruled that the Supreme Court decision applies retroactively to all prisoners serving such sentences.  But in Minnesota and Florida, judges have ruled that the Supreme Court decision only applies to future cases.

State Supreme Courts in Illinois, Florida, Massachusetts and Colorado will likely consider the retroactivity question this fall, said Marsha Levick, chief counsel at the Juvenile Law Center, a legal advocacy group for youth....

The super-predator theory, popular in the early 1990s, predicted a wave of juvenile violent crime in the following decade. States reacted by treating many juvenile offenders as if they were adults.  Between 1992 and 1995, 48 states increased penalties for juveniles convicted of violent crime, according to the Department of Justice.  But that wave never came: Juvenile crime started to drop in the early 1990s, and it has continued to decline in the years since, as has adult crime.

The harsher juvenile sentencing laws likely were not a factor in the decline, since data show there was no difference in the crime rate for states with mandatory life without parole sentences and those without.  Crime has declined nationwide, and across all demographics....

Considering youth as a mitigating factor is part of the Supreme Court’s broader move toward treating kids differently than adults.  In two decisions banning the death penalty for juveniles for both homicide and non-homicide crimes, the justices relied heavily on neuroscience showing that brains are still growing and changing well through the teenage years, meaning that juveniles are likely to grow out of their criminal behavior, especially if they’re put in a rehabilitative setting.

Still, kids are committing adult crimes, and in these cases, victims’ families were promised life without parole sentences for their family member’s killer, said Joy Yearout, spokeswoman for Michigan Attorney General Bill Schuette.  “Families were told that (the killers) would never be paroled, and that could have been 20 or 30 years ago,” Yearout said.  “Now the families are being told that’s not true anymore and that’s very frightening.  It’s very important to have truth in sentencing so that victims have assurance that the sentence will actually be what’s set.” Schuette has said he will appeal the Michigan federal court decision.

Most of the 11 states that have changed their laws to comply with Miller v. Alabama have either discouraged the use of life without parole sentences for juveniles, or scrapped them altogether.

But because the Supreme Court only struck down mandatory life without parole for juveniles, and not all such sentences, states are not required to completely overhaul their juvenile sentencing policies.  In Alabama, where the Supreme Court case originated, the attorney general recently advised district attorneys to seek life with parole in two ongoing juvenile murder cases. The Alabama legislature has not yet approved any changes in mandatory sentencing laws to comply with the Supreme Court ruling.

August 26, 2013 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Could "momentum for sentencing reform [now] be unstoppable" in the federal system?

The question in the title of this post is prompted by a comment in the final paragraph of this lengthy new piece by Juan Williams appearing in The Hill. The piece is headlined "Amid gridlock, a surprising accord on drug-law sentencing," and here are excerpts (including the final paragraph):

Reporters missed a story earlier this month when Attorney General Eric Holder announced new guidelines for his federal prosecutors in handling non-violent drug crimes.   Holder said President Obama plans to “reach out to members of Congress from both parties” to begin work on legislation to revise federal mandatory sentencing rules for people convicted of non-violent drug crimes....

In this era of deep political paralysis on Capitol Hill it should have been headline news that legislation revising sentencing guidelines for drug convicts is miraculously bringing together conservatives and liberals, even Tea Party conservatives and Obama....

Conservatives, including Republicans such as Texas Gov. Rick Perry, who regularly use tough rhetoric about punishing criminals, have already signed on to the essence of what Holder and Obama want to see in congressional legislation.  Even hardline conservative lobbying groups seem to be on board: “It’s a step in the right direction, though about five years too late,” said Grover Norquist, president of Americans for Tax Reform, in an interview with Time magazine.

My Fox News colleague, former Arkansas Gov. Mike Huckabee, a strong conservative Republican, proclaimed on Twitter: “Finally found something I can agree with Eric Holder on — sentencing too many people to prison for non-violent drug crimes.”

The goal is to reduce the nation’s record prison population, now 40 percent over capacity. Conservatives as well as the president and attorney general are amazingly close to agreeing on the need to permanently revise thinking born during the crack epidemic of the 1980s that still has federal prosecutors asking for heavy mandatory sentences in 60 percent of cases involving any kind of illegal drugs....

Durbin and Lee, Democrat and Republican, have introduced a bill — “The Smarter Sentencing Act” — to revise the fixed sentencing guidelines for non-violent drug offenders.  Leahy and Paul, another pairing across political lines, have introduced a similar bill — the “Justice Safety Valve Act of 2013” — which gives judges more discretion to break away from the current mandatory sentencing guidelines.  This bill has already won bipartisan House endorsements.

After Holder’s speech, Paul seemed to indicate the administration is following his conservative, libertarian lead in wrapping its arms around the idea of reducing prison sentences and cutting the cost that comes with housing so many prisoners.  “I am encouraged that the president and the attorney general agree with me that mandatory minimum sentences for non-violent offenders promote injustice and do not serve public safety,” Paul said.

In fact, Paul’s home state, Kentucky, as well as other GOP strongholds, including Arkansas and Texas, have already put in place programs to explore the impact of lesser drug sentences.  In Kentucky, as Holder told the ABA, the prison population is being reduced by an estimated 3,000 inmates over the next decade, which will net savings of $400 million. Texas, Holder said, has reduced its prison population by 5,000 in the last year with new approaches to drug treatment and parole. Arkansas cut 1400 prisoners with a similar plan. “Clearly these strategies work,” Holder said.  “They’ve attracted overwhelming, bipartisan support in ‘red states’ as well as ‘blue states.’  And it is past time for others to take notice.”

Jennifer Palmieri, the White House communications director, confirmed to me Holder’s announcement that the president’s fall agenda will include meeting “with folks in Congress who are pursuing legislation as well as governors and mayors who have done innovative work on this issue.”

The president’s personal attention to the issue could spark some conservative opposition because of their personal antipathy to him.  But with existing support for the idea among Republicans on the Hill and in statehouses nationwide there is also a chance that a White House push on sentencing reform will raise public awareness, generate public support and gain the votes in Congress needed to enact potentially historic changes to 1980s sentencing laws that came out of the “War on Drugs.”

With the president and a line-up of his usual antagonists behind the same bill, the momentum for sentencing reform could be unstoppable. The result will be one of the biggest surprises of all the years of the Obama presidency — a bipartisan success in passing new laws to reduce the nation’s prison population.

Gosh knows I sure hope there might now be unstoppable momentum to get the Smarter Sentencing Act and/or the Justice Safety Valve Act passed in the next few months.  Indeed, right after AG Holder's big speech (which did, I think, make a few headlines), I advocated in this op-ed for the Los Angeles Times that AG Holder and his boss do everything possible ASAP to turn this reform talk and momentum into legal changes.  But the history of advocacy for federal crack sentencing reform, as well as the aftermath of the FSA, always bring me back to the real-world reality that big talk about sentencing reform is always a lot easier and a lot more common than big action.

Some old and newer related posts about AG Holder's speech and the "new politics" of sentencing reform:

August 26, 2013 in Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Sunday, August 25, 2013

"Fifty years ago this month, a young man and an older man sat down and began to plot the end of the death penalty in America."

The title of this post is the first sentence of this interesting piece by Jesse Wegman appearing in the Review section of today's New York Times under the headline "The Death Memo."  Here are more excerpts from what follows:

It was an audacious idea at the time — capital punishment was right there in the Constitution, the Supreme Court had no problem with it, and public opinion remained strongly in its favor.

But to many people, the summer of 1963 represented a new world, one alive with dreams of fairness and equality. That August, across the Mall from the Lincoln Memorial, Supreme Court Justice Arthur Goldberg, a strong opponent of capital punishment, charged his 24-year-old law clerk, Alan Dershowitz, to develop the most compelling legal argument that the death penalty violated the Constitution.

“He said, ‘Don’t find me mass murderers, don’t find me serial killers,’” Mr. Dershowitz, the well-known defense lawyer, recalled recently. Mr. Dershowitz’s resulting memo, described in Evan Mandery’s excellent new book, “A Wild Justice: The Death and Resurrection of Capital Punishment in America,” drew particular attention to racial disparities in the death penalty’s application. Justice Goldberg was impressed, and he worked the memo into a dissent. But so as not to scare off his colleagues, he removed almost every reference to race.

Fifty years later, the death penalty lives on. The Supreme Court suspended it in 1972, holding that the arbitrariness of its application constituted cruel and unusual punishment. In 1976 the court reinstated it.  More than 1,300 people have been executed since, but the rate has fallen over the last decade.

Some justices have categorically opposed capital punishment, like William Brennan Jr. and Thurgood Marshall.  Others have maintained it is indisputably constitutional, like Antonin Scalia and Clarence Thomas.  But as Mr. Mandery notes, three justices who voted to reinstate it later changed their minds....  These justices, more than those with unwavering positions, may serve as a metaphor for tracking our “evolving standards of decency.”

Arthur Goldberg died in 1990. Mr. Dershowitz, whom he liked to call his clerk for life, remembered one of their final conversations. “I said to him, ‘You’re Moses and you haven’t been given the right to cross over to Israel. You’re going to die on Mount Nebo.’ But I promised him in my lifetime we’d see the end of what he did.”

So how will it end? “It’s going to happen the way things always happen at the court,” Mr. Dershowitz said. “The court will appear to be leading, but it will be following.”

August 25, 2013 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (11) | TrackBack

Saturday, August 24, 2013

AG Holder's speech at "Dream March" stresses fairness and "equal justice" (... as federal crack prisoners keep waiting)

Gty_martin_luther_king_obama_tk_130116_wgI just got an e-mail providing this link to the text of Attorney General Eric Holder's prepared remarks which he delivered today in Washington DC as part of the "National Action to Realize the Dream March." Here are some excerpts that caught my eye (with my emphasis added):

It is an honor to be here — among so many friends, distinguished civil rights leaders, Members of Congress, and fellow citizens who have fought, rallied, and organized — from the streets of this nation, to the halls of our Capitol — to advance the cause of justice.

Fifty years ago, Dr. King shared his dream with the world and described his vision for a society that offered, and delivered, the promise of equal justice under law.   He assured his fellow citizens that this goal was within reach — so long as they kept faith with one another, and maintained the courage and commitment to work toward it.  And he urged them to do just that.  By calling for no more — and no less — than equal justice.  By standing up for the civil rights to which everyone is entitled.  And by speaking out — in the face of hatred and violence, in defiance of those who sought to turn them back with fire hoses, bullets, and bombs — for the dignity of a promise kept; the honor of a right redeemed; and the pursuit of a sacred truth that’s been woven through our history since this country’s earliest days: that all are created equal....

But today's observance is about far more than reflecting on our past.  Today’s March is also about committing to shape the future we will share — a future that preserves the progress, and builds on the achievements, that have led us to this moment.  Today, we look to the work that remains unfinished, and make note of our nation's shortcomings, not because we wish to dwell on imperfection — but because, as those who came before us, we love this great country.  We want this nation to be all that it was designed to be — and all that it can become. We recognize that we are forever bound to one another and that we stand united by the work that lies ahead — and by the journey that still stretches before us.

This morning, we affirm that this struggle must, and will, go on in the cause of our nation’s quest for justice — until every eligible American has the chance to exercise his or her right to vote, unencumbered by discriminatory or unneeded procedures, rules, or practices.  It must go on until our criminal justice system can ensure that all are treated equally and fairly in the eyes of the law.  And it must go on until every action we take reflects our values and that which is best about us.  It must go on until those now living, and generations yet to be born, can be assured the rights and opportunities that have been too long denied to too many.

The America envisioned at this site 50 years ago — the “beloved community” — has not yet been realized.  But half a century after the March, and 150 years after Emancipation, it is finally within our grasp.  Together — through determined effort; through a willingness to confront corrosive forces tied to special interests rather than the common good; and through devotion to our founding documents — I know that, in the 21st century, we will see an America that is more perfect and more fair....

To AG Holder's credit, back in April 2009, his Justice Department went to Capitol Hill to tell Congress that the current Administration then believed (and still believes?) that a commitment to fairness and equal justice required completely eliminating the differential treatment of crack and powder cocaine in federal sentencing law.  But since that time, the Obama Administration has suggested it is content with Congress's decision to merely reduce — from 100-1 to 18-1 — the differential treatment of drug quantities for crack and powder.  Moreover, this Administration has made no real effort to help those sentenced before the passage of the Fair Sentencing Act to get any fair or equal benefits from the new law's reduced crack sentencing terms.

Indeed, from its initial advocacy to limit "pipeline" cases from getting the benefit of the FSA's reduced mandatory minimums, to its continued disinclination to seek to help folks still serving excessively long sentences based on the pre-FSA 100-1 crack laws, the Holder Justice Department's actions suggest they do not really think a commitment to fairness and equal justice calls for doing much of anything to help crack offenders sentenced before August 2013. 

Please understand that I know full well the range of forcefully legal arguments and political considerations which can be made to justify preventing thousands of federal prisoners still serving excessively long crack sentences from getting any benefits from the FSA.  But I also know full well that if Dr. King were alive today, he surely would be advocating forcefully for this Administration to live up to its commitment to fairness and equal justice and to do something to help those federal prisoners still languishing in prison based on the unfair and unequal sentences required by the pre-FSA crack laws.

Indeed, with current federal prisoners in mind, I think we still are awaiting the day that Dr. King dreamed of and spoke about when he ended his speech in this way:

[I dream of] the day when all of God's children will be able to sing with a new meaning, "My country, 'tis of thee, sweet land of liberty, of thee I sing. Land where my fathers died, land of the pilgrim's pride, from every mountainside, let freedom ring."

And if America is to be a great nation this must become true.  So let freedom ring from the prodigious hilltops of New Hampshire.  Let freedom ring from the mighty mountains of New York. Let freedom ring from the heightening Alleghenies of Pennsylvania!

Let freedom ring from the snowcapped Rockies of Colorado!  Let freedom ring from the curvaceous slopes of California!

But not only that; let freedom ring from Stone Mountain of Georgia!  Let freedom ring from Lookout Mountain of Tennessee!

Let freedom ring from every hill and molehill of Mississippi. From every mountainside, let freedom ring.

And when this happens, when we allow freedom to ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God's children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual, "Free at last! free at last! thank God Almighty, we are free at last!"

I suppose we all need to just keep dreaming, while still stressing the "fierce urgency of now."

August 24, 2013 in New crack statute and the FSA's impact, New USSC crack guidelines and report, Offense Characteristics, Race, Class, and Gender, Who Sentences? | Permalink | Comments (32) | TrackBack

Debate continues after Mizzou Gov vetoes bill to take juve sex offenders off registries

As reported in this AP piece, headlined "Vetoed bill could affect 870 Mo. sex offenders," the Show Me state is showing all of us how a focused debate over juvenile sex offenders can play out these days. Here are the basics:

A Missouri bill removing the names of juvenile sex offenders from public registries could affect hundreds more people than originally estimated and help hide the whereabouts of some high-profile offenders, Gov. Jay Nixon said Wednesday.

The Democratic governor pointed to new figures and specific examples of sex-offenders as he traveled to St. Louis and Kansas City to try to build a case for why legislators should sustain his veto of the bill....  Republican legislative leaders have said the measure is a likely target for a veto override, noting that it passed originally with overwhelmingly support.

Under the bill, people who are younger than 18 when they commit sex offenses would no longer appear on law enforcement websites that list the home addresses and physical description of sex offenders.  Adults who are currently listed because of sex offenses committed as juveniles also could be removed from the public registry five years after their convictions or release from prison.

Supporters of the bill have said the public registries leave a permanent mark on adults who may have been convicted as teenagers for consensual sexual activities with younger juveniles.  They have said such people deserve a second chance outside of the public spotlight.

The bill passed the House 153-0 and the Senate 28-4 earlier this year. Nixon has said the legislation would weaken state laws and undermine public safety....

"The leadership of the House may be ready to help violent sex offenders hide from the public and law enforcement, but their victims, and the millions of Missourians who use these websites to help keep their families safe, are not," Nixon said.

The governor's office distributed information about specific sex offenders who could be removed from the list if lawmakers were to override his veto.  Among them is Daniel Winfrey, who was 15-years-old in April 1991, when sisters Julie and Robin Kerry were raped and killed at the Chain of Rocks Bridge over the Mississippi River in the St. Louis area.  Winfrey pleaded guilty to second-degree murder and rape after agreeing to testify against several others involved in the crime.

Other offenders that the governor's office cited as likely to be removed from the public registry included men who had been convicted as juveniles of rape, sexual assault and sodomy against children who were ages 5, 6, 7 and 8.

Nixon spokesman Scott Holste said the legislation would benefit people who committed "heinous" acts. "These aren't Romeo and Juliet people we're talking about here," Holste said.

August 24, 2013 in Criminal Sentences Alternatives, Offender Characteristics, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Thursday, August 22, 2013

New York Times editorial board rightly highlights "Pardon Rates Remain Low"

I was pleased to see this morning that the New York Times has this new editorial discussing clemency issues under the headline " "Pardon Rates Remain Low." Here are excerpts:

Attorney General Eric Holder said many encouraging things in his important speech on the future of sentencing reform, but the most striking thing may have been what he did not say. In all his 4,000 words on America’s “broken” legal system — and particularly on its outlandishly harsh and ineffective sentencing laws — there was not one mention of executive clemency.

That power, which the Constitution explicitly grants to the president, has always served as an indispensable check on the injustices of the legal system and as a means of demonstrating forgiveness where it is called for.  It was once used freely; presidents issued more than 10,000 grants of clemency between 1885 and 1930 alone.  But mercy is a four-letter word in an era when politicians have competed to see who can be toughest on crime....

As ProPublica has documented, the pardon process has devolved into a mockery of itself, riven by arbitrariness, racial disparity and charges of abuse.  Pardons of powerful, well-connected individuals like Marc Rich, by Bill Clinton, and Lewis Libby, by George W. Bush, have only increased cynicism about the process.

Meanwhile, President Obama’s use of the pardon power remains historically low. In four and a half years, he has received almost 10,000 applications for clemency and has granted just 39 pardons and one sentence commutation.  No one seems to know why some requests are granted and others denied.  To call it a lottery is unfair to lotteries; at least if you pick the right numbers, you’re guaranteed to win....

As the experience of many states shows, a functional pardon system must also be accountable. This can mean requiring the executive to publish an annual report on pardon policy and practice. Currently the president has no obligation to explain his grants or denials, which undermines public trust in the system.

In this light it is disheartening that the Obama administration continues to resist calls to remove the current head of the pardon office, Ronald L. Rodgers, despite a finding by the Justice Department’s inspector general that in 2008, Mr. Rodgers misrepresented material information in recommending that the president deny a petition for clemency.

In a 2003 speech, Justice Anthony Kennedy said that “a people confident in its laws and institutions should not be ashamed of mercy.” In the 10 years since that speech, requests for mercy have increased even as the prospects for reform have not. In the first 10 months of fiscal 2013, 2,000 inmates applied for commutations, more than in any single year in history.

Executive clemency may not be the ideal way to ameliorate the system’s excesses, but for many people stuck with an unjustly long sentence or a conviction that prevents them from getting jobs, business licenses or even public housing, it remains the only way....

Mr. Holder was right to call for a substantial overhaul of our criminal justice system. But any meaningful reform must include the clemency process, by which we temper our most punitive tendencies. It is long past time for the president to heed the words of Justice Kennedy and reinvigorate this fundamental executive prerogative.

Kudos to the New York Times editorial board for giving this issue significant attention in the wake of AG Holder's speech (and for the great line "[t]o call it a lottery is unfair to lotteries...."). The Obama Administration's record on this issue is truly abysmal, especially given that President Obama rode into the White House in 2008 by stressing the themes of hope and change into the White House.

Especially disconcerting is Obama's failure to date to use his clemency powers (or really to do anything of significance) to help the many thousands of low-level crack offenders still serving (now-repealed) severe mandatory minimum prison sentences based on the old 100-1 crack/powder sentencing ratio. Back in 2007 on the campaign trail in his speech to Howard Univesity (as I discussed in this 2010 law review article), then-candidate Barack Obama had this to say about those federal prisoners:

When I'm President, we will no longer accept the false choice between being tough on crime and vigilant in our pursuit of justice....  We can have a crime policy that's both tough and smart. If you're convicted of a crime involving drugs, of course you should be punished. But let's not make the punishment for crack cocaine that much more severe than the punishment for powder cocaine when the real difference between the two is the skin color of the people using them. Judges think that's wrong. Republicans think that's wrong. Democrats think that's wrong, and yet it's been approved by Republican and Democratic Presidents because no one has been willing to brave the politics and make it right. That will end when I am President.

Though I suppose President Obama deserves some credit for the passage of the Fair Sentencing Act, even the revised federal penalties under that law with its new 18-1 ratio still mean that "the punishment for crack cocaine [is] much more severe than the punishment for powder cocaine." And, more to the point of this post, the only reason I can surmise to explain why President Obama has not been willing to grant commutations to some significant number of the thousands of prisonder serving sentences that judges and Republicans and Democrats all think are wrong is because President Obama even in his second term is still , in fact, NOT "willing to brave the politics and make it right."

I know that there are at least 2000 federal prisoners who applied for clemency just this last year who continue to reasonably hope that President Barack Obama remembers that his clemency powers provide one of the very best ways for him to be "vigilant in our pursuit of justice."  But, as the NY Times highlights, in this arena many now have been hoping for nearly five years to see any real change.

Some recent and a few older posts concerning federal clemency practices:

August 22, 2013 in Clemency and Pardons, Prisons and prisoners, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12) | TrackBack

Wednesday, August 21, 2013

New op-ed from former federal judges Paul Cassell and Nancy Gertner lament defender cuts

Another notable set of voices appears in this new Wall Street Journal commentary headlined "Public Defenders Fall to the Sequester: Steep budget cuts compromise the justice system and won't save money in the long run." The piece is co-authored by two of my favorite former federal district judges, Paul Cassell and Nancy Gertner, and here are excerpts:
[D]ue to the combination of general budget austerity and sequestration, the federal public defender system — a model of effective indigent defense for the past 40 years — is being decimated. As former federal judges from opposite ends of the ideological spectrum, we both understand that these shortsighted cuts threaten not only to cripple the federal defender system, but to disrupt the entire federal judiciary—without producing the promised cost savings.

A decrease of nearly 10% in the federal public defender budget for 2013 has already resulted in layoffs and up to 20 days of furloughs in many federal defender offices. In a number of states, federal courts have been forced to delay criminal cases because of public defender furloughs and layoffs....

These steep budget cuts will not save us money in the long term. Delays in trials require many defendants to spend more time in costly pretrial detention facilities. But the flow of criminal prosecutions has not abated, so the unavailability of public defenders will simply force courts to engage private attorneys more frequently. Most federal judicial districts have a public defender office and, in those districts, it is more cost effective to have the office handle a majority of cases.

Reducing funding for federal defender budgets means that the remaining federal defenders have less time and fewer resources with which to investigate cases, conduct legal research and hire expert witnesses. This loss severely compromises their ability to represent their client at trial, destroying the adversarial process at the heart of our system. Without balanced, vigorously litigated cases, wrongful convictions may become more common, imprisoning the innocent and allowing the guilty to walk free.

These mistakes — inevitable in an underfunded system — will create even more expenses down the line, through appeals, unlawful-detention proceedings and retrials. As Supreme Court Justice Stephen Breyer noted in March in congressional testimony about the effects in general of the sequester, it is "cheaper to have a decent lawyer in the first place."...

As Congress works to reach agreement on spending for next year, its members must know that proceeding with steep cuts to the federal defenders not only threatens to undermine justice, but is bad fiscal policy.

Only with full funding of federal defenders will we avoid the ripple effect that will clog judicial dockets, delay both criminal and civil proceedings in federal courts—and undermine the efficiency of a federal defender system that has effectively served justice for the past 40 years.

Recent related posts:

August 21, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, August 20, 2013

US District Judge Bennett documents prosecutor-created disparity from § 851 enhancements in yet another potent opinion

Long-time readers know that big federal sentencing news can often come from the heartland in the form of potent lengthy opinions by US District Judge Mark Bennett.  His latest important sentencing work, which a number of helpful readers have made sure I would not miss, comes in US v. Young, No. 5:12-cr-04107 (D. Iowa Aug. 16, 2013) (available for download below).  I could say much about so many notable passages in this 75-page Young opinion (which includes 20+ pages of data-rich appendices at the end), but I will be content to let the first few paragraph highlight why this opinion is a must-read for all who follow the federal sentencing system:

This case presents a deeply disturbing, yet often replayed, shocking, dirty little secret of federal sentencing: the stunningly arbitrary application by the Department of Justice (DOJ) of § 851 drug sentencing enhancements. These enhancements, at a minimum, double a drug defendant’s mandatory minimum sentence and may also raise the maximum possible sentence, for example, from forty years to life. They are possible any time a drug defendant, facing a mandatory minimum sentence in federal court, has a prior qualifying drug conviction in state or federal court (even some state court misdemeanor convictions count), no matter how old that conviction is.

Recent statistics obtained from the U.S. Sentencing Commission (Commission) — the only known data that exists on the eligibility and applications of the DOJ’s § 851 decision making — reveal jaw-dropping, shocking disparity. For example, a defendant in the Northern District of Iowa (N.D. of Iowa) who is eligible for a § 851 enhancement is 2,532% more likely to receive it than a similarly eligible defendant in the bordering District of Nebraska. Equally problematic is that, at least prior to August 12, 2013, decisions to apply or waive § 851 enhancements were made in the absence of any national policy, and they are still solely within the unreviewed discretion of the DOJ without any requirement that the basis for the decisions be disclosed or stated on the record. This is true even for non-violent, low-level drug addicts.

These decisions are shrouded in such complete secrecy that they make the proceedings of the former English Court of Star Chamber appear to be a model of criminal justice transparency.  See In re Oliver, 333 U.S. 257, 266–271 (1948) (“The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by . . . the English Court of Star Chamber.”).  Attorney General Holder’s August 12, 2013, Memorandum to the United States Attorneys and Assistant Attorney General for the Criminal Division: Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases (Holder 2013 Memo), while establishing a national policy for § 841 enhancements, does nothing to pull aside the cloak of secrecy shrouding the nationwide disparities in the application of § 851 enhancements.

Download Bennett Young opinion.081613

August 20, 2013 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (47) | TrackBack

Sequester now requiring still more foolish cuts to federal criminal justice services

As reported in this USA Today piece, headlined "Public defenders, probation services to have cutbacks," another fiscal shoe is dropping as a result of sequester in a manner that seems likely to harm both the federal justice process and crime control efforts. Here are the details:

The federal judiciary for the first time is cutting the fees of court appointed defense lawyers, including those representing death penalty defendants, to deal with the "dire consequences'' of required government budget reductions known as sequestration.

The reductions, outlined in a notice to U.S. District Judge Catherine Blake, chairwoman of the Federal Judicial Conference Committee on Defender Services, are part of an unprecedented criminal justice cost-cutting effort that also will scale back operations of federal probation services at a time when authorities are planning to rely more heavily on programs like probation to help reduce the rising federal prison population.

The cuts in attorneys' fees will be implemented next month with payments dropping from $125 per hour to $110 in non-death penalty cases and from $179 per hour to $164 in cases where capital punishment is being sought.

The reductions are aimed at saving $50 million during the next 13 months to avoid further cuts into the full-time staff of the federal defenders service. The defender program consists of both full-time public defenders, who have been targeted for furloughs and layoffs, and private court-appointed lawyers who assist in the representation of the indigent. In addition to the fee cuts, millions of dollars in fees to the outside court-appointed counsels, scheduled for payment in fiscal year 2014 (beginning in October), would be deferred into fiscal year 2015.

In the letter to Blake made public Monday, William Traxler Jr., chairman of the Judicial Conference's Executive Committee, warned that the fee cuts "may impact the delivery of justice, but are necessary to avoid permanent damage to the federal defender program."

"Measures of this kind, however, are not sustainable in the long term and certainly would not be required if the judiciary were receiving an appropriate level of funding in this account," Traxler said....

Notice of the fee reductions come less than a week after the chief judges of 87 federal districts warned congressional leaders and Vice President Biden that funding reductions to the judiciary have "put public safety at risk."

Although the number of convicted offenders supervised by probation officers is expected to increase from a record 187,311 in 2012 to 191,000 by 2014, the number of probation and pre-trial services officers employed by the judiciary to supervise those offenders has been reduced by 7% since 2011 to a staff of about 6,000....

"Cuts to officer staffing levels have forced cutbacks in these activities to crisis levels," the judges said in the letter last week. "Particularly troublesome is the 20% cut that had to be made to the … allotments that fund drug, mental health and sex offender treatment and testing services for offenders and electronic GPS monitoring."

U.S. District Judge Loretta Preska, chief judge of New York's Southern District and one of the two main authors of the judges' letter, said the appeal to Congress is the first she can remember in more than two decades on the bench. In her own district, forced budget reductions have hit the probation and treatment programs especially hard, Preska said in an interview, requiring a 43% cut in substance abuse treatment for offenders, a 7% drop in mental health treatment and a 24% cut in special location monitoring programs, including GPS monitoring of those on supervised release.

She said the reduction in attorneys' fees is "very dangerous" in regions of the country like New York, where legal fees are especially high. "Fees of $125 per hour is virtually charity work in New York," she said. "We want to make sure we can attract competent lawyers to join the panel" of court appointed attorneys. "We are very concerned," she said.

These cuts, though seemingly necessary because of the failure of Congress to act on funding issues, are hard to even consider "penny wise" and they are certainly "pound foolish."  Less funding for evidence-based treatment programs are very likely to lead to increased recidivism and its associated long-term costs.  And poor funding of defense services are very likely to lead to inadequate representation in some cases which likewise creates long-term costs due to future appeals and/or the imposition of excessive prison sentences.

I am pleased that the district judges are taking steps to alert Congress to the crisis that these budget issues are now producing, but I am disappointed that others in the federal judiciary are not also making a bigger deal about these issues.  In particular, I believe both the US Sentencing Commission and the Justices of the Supreme Court could and should be saying a lot about these issues given that they both have unique institutional insights and responsibilities concerning the functioning and fairness of the federal criminal justice system.

Recent related posts:

August 20, 2013 in Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Monday, August 19, 2013

Latest news on chemical logistical challenges now surrounding lethal injection

The New York Times has this effective new report, headlined "Death Row Improvises, Lacking Lethal Mix," discussing some of the latest notable logistical realities surrounding lethal injection protocols. Here are excerpts:

The decision by the Missouri Supreme Court to allow propofol, the same powerful anesthetic that caused the death of Michael Jackson, to be used in executions — coming at a time when Texas, Ohio, Arkansas and other states are scrambling to come up with a new drug for their own lethal injections — is raising new questions about how the death penalty will be carried out.

“The bottom line is no matter what drugs they come up with, despite every avenue these states have pursued, every drug they have investigated has met a dead end,” said Deborah Denno, a professor at Fordham Law School who studies execution methods and the death penalty. “This affects every single execution in the country. It just stalls everything, stalls the process.”

With manufacturers now refusing to supply corrections departments with the drugs they had been using for executions, some states, like Georgia, have been resorting to obtaining drugs from compounding pharmacies — specialty drugmakers — which death penalty opponents say lack the proper quality control. Other states, as they run low on their old stock of drugs and are unable to replace them, are turning to new, untried methods like propofol or simply announcing that they are searching for a solution....

[Recent developments have] left states unsure of what to do when their stockpiles run out — use some other drug like propofol, buy versions of sodium thiopental or pentobarbital from a compounding pharmacy, or abandon lethal injections altogether and return to some other form of capital punishment.

“It’s an artificially created problem,” said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which supports the death penalty. “There is no difficulty in using a sedative such as pentobarbital. It’s done every day in animal shelters throughout the country. But what we have is a conspiracy to choke off capital punishment by limiting the availability of drugs.”

The issue is expected to come to a head soon. Both Texas, the state with the busiest death house, and Ohio have said they would introduce a new lethal injection protocol in the next couple of months. Officials in both of those states have said in court filings that they would run out of their stockpiles in September.

“Corrections departments often buy a year’s supply of the drugs they use, but it has a shelf life and it’s expiring,” said Richard C. Dieter, the executive director of the Death Penalty Information Center.  “I think we are about to have some new breakthroughs on what the states are using.  A lot of them will probably follow whatever Texas decides to do.”

On Wednesday, the Missouri Supreme Court decided to allow executions using propofol to move ahead in October and November. There is no question that it would kill, but since it has never been used in an execution, death penalty opponents say, there is no way to say how much pain might be involved or what dose should be administered.

Arkansas had announced that it would use pentobarbital in its executions, but when that drug became unavailable, the governor refused to schedule any more executions until the state came up with a substitute — which has not happened. California also announced, in June, that it would abandon the use of a three-drug cocktail and is studying what to replace it with. “This drug issue is a temporary problem that is entirely fixable,” Mr. Scheidegger said. “It is not a long-term impediment to the resumption of capital punishment.”

Death penalty opponents, however, feel that the rejection of one drug after another will inevitably limit capital punishment.... There were 43 executions in the United States in 2012, Mr. Dieter said, and a slightly lower number — 30 to 40 — is expected this year....

“This issue of the drugs is just a way to stop things or slow them down,” said Robert Blecker, a professor of criminal law at New York Law School and a death penalty supporter. “It’s an abolitionist tactic to gum up the works. I know why they’re doing it. From their perspective, every death delayed is a day in favor of abolition. It’s just another tactic.”

I share the perspective that we may soon have "some new breakthroughs" on how states seek to conduct executions and that many states will "follow whatever Texas decides to do." I also expect that Texas state courts and the Fifth Circuit will be relatively unlikely to halt executions based on (inevitable?) legal challenges to any new lethal injection protocols or plans. But when and how other state courts and federal courts respond to such challenges may script whether the number of execution nationwide will continue to decline in coming years or may actually start to rise at some point in the not-too-distant future.

August 19, 2013 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (8) | TrackBack

"Crack Cocaine, Congressional Inaction, and Equal Protection"

The title of this post is the title of this new paper on SSRN authored by Paul Larkin Jr. and which appears to be critical of the Sixth Circuit's (now vacated) panel decision in US v. Blewett. Here is the abstract:

For decades, scholars and courts have debated whether the Anti-Drug Abuse Act of 1986 discriminates against African Americans by imposing far stiffer punishments for trafficking in crack cocaine than in its powdered form.  The academy has generally concluded that the federal crack cocaine sentencing laws are racially discriminatory, while the federal courts have almost uniformly rejected the same argument. Three years ago Congress, via the Fair Sentencing Act of 2010, addressed the issue by reducing, without eliminating, the sentencing disparity. Recently, the U.S. Court of Appeals for the Sixth Circuit in United States v. Blewett, 719 F.3d 482 (6th Cir. 2013), concluded that the 2010 statute would be unconstitutional if it were not applied retroactively. The Blewett case forces this debate back into the political arena.

The Sixth Circuit misapplied equal protection law.  Rather than ask whether Congress refused to apply the Fair Sentencing Act retroactively for a discriminatory purpose, the court concluded that Congress’s decision to adopt a prospective-only statute was tantamount to readoption of Jim Crow.  Settled law, however, requires proof of discriminatory intent.  Moreover, Congress’s refusal to adopt retroactive legislation cannot violate the Due Process Clause.  The clause applies only to positive law, so Congress cannot violate the clause by not enacting legislation.  Finally, the Sixth Circuit failed to consider the effect of strict enforcement of the drug laws on the innocent residents of communities where crack trafficking occurs.  It may be unwise to continue to imprison crack offenders for the full length of their prison terms imposed under the strict provisions of a now-amended law, but a mistaken decision is not invariably an unconstitutional one.

Related posts on Blewett:

August 19, 2013 in Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack