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February 11, 2013

Talk in Chicago of increasing mandatory minimum sentences for gun possession

Chicago gunsAs reported in this new local article from Chicago, that city's "mayor, cops and prosecutors are taking aim at Illinois’ gun possession laws — calling for longer mandatory prison terms and 'truth in sentencing'." Here are some of the details of the proposal and the sentencing debate is has started to engender:

Their wish list includes boosting the minimum required sentence for people convicted of gun possession from one year in prison to three years. They hope to increase the minimum sentence for felons caught with guns from two years to three years.

They also want everyone convicted of felony gun possession to be required to serve 85 percent of their sentences. Now those inmates must complete only half their terms — and sometimes much less after earning “good time” in prison.

Cook County State’s Attorney Anita Alvarez said the proposed reforms would deter more people from carrying guns illegally and would help curb violence. “The guys who are doing the shootings would be away from the corners for a longer time,” Alvarez said in an interview.

Mayor Rahm Emanuel, whose office drafted the legislative proposals, is expected to announce them Monday with Alvarez and other officials. “Criminals continue to escape with minor sentences for possessing and using firearms,” Emanuel said in a prepared statement.

For months, police Supt. Garry McCarthy has proposed lengthening the mandatory sentence for gun possession to three years, pointing to New York City, where he was once a high-ranking cop. The state of New York passed a 3½-year mandatory minimum sentence for illegal gun possession in 2007. The following year, NFL star Plaxico Burress was arrested after a handgun he was carrying accidentally discharged and shot him.

Burress pleaded guilty to a lesser offense and was hit with a two-year jail term, drawing national attention to New York City as a place that cracks down on illegal gun possession. Criminologists point to the mandatory gun sentence in New York as one of the reasons for the Big Apple’s continuing decline in violent crime.

Chicago — whose murder tally rose 16 percent to 506 last year — has about three times as many murders per capita as New York. Also, about 85 percent of murders in Chicago involve a gun, compared to about 60 percent in New York.

While the cops and prosecutors in charge of locking up criminals support lengthier sentences, one judge said the General Assembly — and the public — need to think hard before making the gun laws harsher. “As a taxpayer of this state, I would hope the legislators are cognizant that creating mandatory minimum sentences creates a financial consequence to the state,” said Cook County Judge Nicholas Ford.  “A lot of judges bristle at mandatory minimum sentences.  It’s not my position to question it.  It’s my job to enforce whatever the legislature forwards me.

“But for a person who’s never been convicted of a felony, for a person who’s never committed a violent crime, for a taxpayer who’s never had any problems with the law, I wonder about that,” Ford said.

Alvarez responded that few people without criminal backgrounds are charged with felony gun possession in Cook County.  “You will see that once in a while, but that is when our discretion [as prosecutors] comes into play in charging and in looking at cases once they’re in the system,” she said.

Supporters of mandatory minimum sentences say they also provide a predictable outcome. Indeed, a Chicago Sun-Times examination found wide disparities in how often Cook County judges put people behind bars for gun possession before mandatory minimum sentences fully took effect in early 2011.

Ford, for example, sentenced 42 defendants for gun possession and sent about 76 percent to prison. About 21 percent received probation and 2 percent went to boot camp. The length of his average prison sentence was almost two and a half years. Judge Michael Brown, meanwhile, sentenced 45 defendants. About half went to prison, 23 percent received community service, 18 percent probation and 5 percent boot camp. But the length of his average prison sentence was more than three years.

Overall, Cook County judges sent nearly three-quarters of such defendants to prison for an average sentence of almost two and a half years.  About 14 percent got probation, 6 percent boot camp and 4 percent community service.  The newspaper studied 2011 sentencing outcomes in felony gun possession cases that didn’t include other types of crimes.

Many of those cases involved 2010 arrests, which didn’t apply to the mandatory minimum sentences that took effect in 2011. A separate law that took effect in late 2009 requires a minimum sentence of three years for gang members convicted of carrying a loaded gun.

The Sun-Times analysis found that judges sometimes sentenced defendants to Cook County boot camp — a four-month program with eight additional months of strict supervision. Ford called boot camp a “really solid disposition” for younger defendants without a felony record or violent background.

But Alvarez said she doesn’t think judges should have the option to sentence such defendants to boot camp. “It’s not ‘pen’ time,” she said. “I think the law is clear that they should not be giving boot camp, but judges see it a different way.”

Alvarez said she’s considering discussing the matter with Cook County Chief Judge Timothy Evans and “seeing if there’s something we need to change legislatively — or litigate it.” As Alvarez and other politicians pursue tougher gun laws, one man convicted of illegal gun possession surprisingly said they’re right.

Matthew Munoz, 24, was arrested in 2011 after he and his pals got into a squabble with rival gang members on the South Side.... Munoz was eligible for probation because his crime happened in 2010, before the one-year mandatory minimum took effect. He was sentenced to two years’ probation, but after one year he messed up when he tried to foil a drug test.

Munoz was sent to prison. But because he got credit for time he spent in the Cook County Jail, he said he spent only one day at Stateville Correctional Center. “It’s called ‘dress in and dress out,’ ” he said.

Munoz is now on parole, which he vows to complete successfully. He plans to go to school and get a job. “Some people need prison to learn their lesson,” Munoz said. “I wish I got sent to prison a long time ago. I kept getting probation for this and that. . . . Chicago is getting out of control with the gang violence. They should send those guys to prison — even guys like me.”

As serious sentencing fans know well, and as this article helps highlight, mandatory minimum sentencing laws do not really mandate prison for all offenders.  Rather, they mostly serve to transfer the discretion as to which offenders go to prison from judges to prosecutors. 

If there is good research indicating that this transfer of discretion in the gun crime settings help to reduce illegal gun use and gun violence, I can understand why folks in Chicago and elsewhere think increased mandatory minimums should be a needed response to gun crimes and gun violence.  But, as lots of research and experience reveals in the federal system and elsewhere, having prosecutors as exercising the most sentencing discretion via mandatory minimums tends to increase sentencing disparities, not ensure that similar defendants always receive similar sentences.

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I received a minimum sentence once for an “Oh the humanity” offense.

The up-tick was that the minimum was a $25 fine .

The down-tick was that the rogue judge (a former Senator and Supreme Court candidate) deliberately created an offense using a Punishment by Analogy method to punish conduct that was not criminal until over ten months later „ three days before he died* on Bastille Day .

* On 22 June 1933 „ Judge James E Horton cautioned folks :
Deliberate injustice is more fatal to the one who imposes than to the one on whom it is imposed.”

☺ Karma does not always loose ☺

Nemo Me Impune Lacessit

Posted by: Any Old Mouse 10^10 | Feb 11, 2013 10:45:26 AM

Doug and I were just discussing this on WBEZ, the pbs station in Chicago, and, as ever, it's a pleasure to toss the ball around with him.

Whether MM's should be applied to a given crime (a gun crime or any other), and what the MM floor should be, are subjects for legitimate debate. But it seems to me that the CONCEPT of mandatory minimums is one upon which there should be broad agreement. Mandatory minimums are the logical counterpart to mandatory maximums -- the notion that the legislature should be able to impose a ceiling on the sentence for a given crime, because, no matter how bad the offender may be, the act made criminal simply cannot, in fairness, warrant more than X amount of jail time. If we can accept a legislative judgment about what sentence is necessarily too harsh, given the nature of the offense, we can accept its judgment about what sentence is necessarily too lenient.

Posted by: Bill Otis | Feb 11, 2013 11:04:25 AM

I concur on all fronts, Bill, though I still wonder how you propose to deal with the impact of prosecutorial charge stacking/bargaining to evade all these potential legislative limits/judgments.

As you know well, prosecutors often can and often will (despite complaints by the defense) charge many variations on basic criminal incident in order to benefit from the opportunity to stack maximums and thereby avoid any serious limit on the top of sentences. (The notorious Rubashkin case is a good example here, where the feds ended up with an indictment involving 175 counts an thus an effective max of well over 1000 years. Federal CP cases with more than a few images --- which all of them are --- also enable similar stacking by prosecutors to blow away any real statutory max.)

Similarly, as you also know well, prosecutors often can and often will (now prodded by the defense) bargain away all sorts of statutory minimums if (and typically only when) a defendant gives up trial/appeal rights and cooperates with authorities. Again, federal CP cases provide a great example, as prosecutors will frequently charge receipt (with its 5-year min), and then allow a plea to possession only if/when a defendant give up all right.

Of course, the FSG and other sophisticated guideline systems were generally designed to deal with these concerns. And I think guidelines do a reasonable job in this respect IF AND ONLY WHEN they are flexible and the actual PROVEN offense conduct and mitigators are all placed on the record for sentencing judges to see/consider and for appeals judges to review when asked.

Prior to Booker, the mandatory FSG got too severe (in part because they have always been built atop too-severe MMs) and allowed too much unproven offense conduct to determine outcomes (while also unduly restricting the ability for mitigators to be taken into account in some case). Now in their advisory posture, we are closer to a healthy balance (as I think you agree, Bill, at least in the Amish case), though there is still too much hidden discretion in the hands of both prosecutors and judges and too much pressure based on severe sentencing norms (and persistent lengthy MMs) which now still require defendants to waive a bunch of rights in order to have any real chance to avoid very long federal prison terms.

Posted by: Doug B. | Feb 11, 2013 11:44:11 AM

If you were trying to describe at a fairly high level of generality what type of criminal statutes should definitely NOT have mandatory minimums (in terms of what sorts of legislative judgments would or would not comport with common sense and sound policy, without necessarily getting into the 14th amendment), purely regulatory offenses that were never common-law felonies and do not involve (as an element that must be proven) any actual or imminently-threatened harm to others would seem like pretty strong candidates. In other words, most modern gun-possession statutes.

Posted by: JWB | Feb 11, 2013 12:22:16 PM

Doug --

The Constitution itself gives the executive branch sole charging authority. As I said in the WBEZ program, I'm all for greater transparency. That is why, time and again here, I invite commenters to go down to the local courthouse, pick out a criminal case at random, and decide for themselves whether what they see is some amoral/thug prosecutor or, instead, a guy who's bringing to book a defendant who's main gripe is that he got caught, and who would rather do anything than tell the whole, forthcoming truth about what he's been up to.

MM's came about because the public had had it with lenient sentencing and was going to put a stop to it. This has been a big success. It is not the sole reason crime rates are so far down, but it is a big contributor. Should we go back to the bad old days?

You keep wanting to lay the blame for disparity and what is in your view excessive sentencing on prosecutors. In fact, it's the other two actors in the courtroom who should be in line for blame-taking first. If the defendant didn't have 10,000 pictues of some eight year-old being forced to have sex with an animal, he wouldn't be in court at all (I know, I know, he was just doing a "research project." How many times have we heard that one?). And, as noted, the judges have only themselves to blame. If they had been sober about sentencing, instead of indulging their rehabilitation fantasies (at the public's expense), the impetus for MM's and mandatory guidelines would never have formed to begin with.

I constantly hear about "count stacking," but when I talk about the most notorious incident of count stacking in recent years -- the Jerry Sandusky case, in which the prosecutors "stacked" 54 counts (later reduced by the court to 48) -- no one on the defense side seems to want to talk about it. Why not?

The reason seems clear enough to me. "Count stacking" is simply defense lingo for "multiple crimes," which is exactly what Sandusky (and most other defendants in sex cases) did. Which victim, or which rape, should the prosecutors have ignored?

If the defendant wants to avoid multiple felony charges, I have a suggestion: Don't commit multiple felonies.

The basic flaw in the defense position is that it wants to focus solely on what happens, in prosecutors' offices especially, AFTER the client gets caught. But the real problem, in terms of social harm, is what the client was up to BEFORE he got caught.

Moral of story: If you want to be Jerry Sandusky, don't expect a lot of sympathy, or a lot of help, by trying to convince the public that the real problem is the prosecutors. It's not. It's you.

Posted by: Bill Otis | Feb 11, 2013 12:27:01 PM

JWB --

I would go beyond your suggestion. Purely regulatory offenses, with no element of mens rea, are very problematic as crimes at all. There may be exceptions, but it seems to me that civil penalties are sufficient in such cases.

Posted by: Bill Otis | Feb 11, 2013 12:38:56 PM

Chicago, how can it go Rahm?
At least we know he has no ulterior agenda:
[and a heart of bipartisan/statesmanship]

· "You never want a serious crisis to go to waste ... This crisis provides the opportunity for us to do things
that you could not before." Wall Street Journal, 11/19/08

"Two decades ago, he boxed up a dead fish and sent it to a political opponent,
a nod to a scene in "The Godfather"…he joked that his first name, "roughly translated from Hebrew, means 'go screw yourself.' "--San Francisco Chronicle, 11/7/08.

· "[Republicans] can go f--- themselves!"--SFC, 11/7/08.

Just remember, the Chicago mayor, well: --> "He's a centrist," <--said Rep. George Miller, D-Martinez"--SFC, 11/7/08.

Posted by: Adamakis | Feb 11, 2013 2:04:59 PM

Chicago and their 1 yr and wanna be 3 yr minimum for a gun bump as a felon...How stupid can they get... Just forward it up to the Feds.. Lots of AUSA just like Bill that will see that they get the minimum 5 yr sentence and most will get jacked up to 10-25 yrs with all of the litttle triggers the guidelines have..Cat 6 enhancements...

So Chicago isn't playing with a full deck, its the way I look at it...

Bill, no disrespect to you on this post... It would be your duty to hammer them and rightfully so....What is wrong with Chicago.. I would not have any restrictions on gun possession in Cook County.. Waste of effort.. Just catch the bad guys and forward to the feds... TAke the rest of the week off, zero $$$ from cook county spent and get rid of these thugs for lots longer.. Its what the federal system was designed for...

Actually I will go out on a limb: Federal system should not be taking cases from Smallville USA, unless they operate like like the thugs in Huge metro areas..
Thugs operate with gangs and nornmally have a gun thats used with the transaction...
This is what the federal system is for, cleaning up large sewers, not 2 20 yr olds selling drugs to a guy that needs them for next fix and the 2 get their cut out of it...Let the states handle the local small cases... When they get to making 50 grams or more of meth, selling coke by the kilo, its time to send them off to Federal land....

Concept is so simple... But no the feds prosecute every little guy they can.. I actually think it pumps them up.. These Judges and AUSA are so far from touch of the everyday world thsy need to be horse whipped...They add in every little point and enhancement they can to get the maximum sentence, then bicker about giving any variances.. Days gone by if you appealed in the 8th circuit, they would add on significantly to the sentence..
As if to say, how dare you question the district courts decision..

Some would say, then don't do the crime and you wouldn't have to face the music..Sorry thats a crude, lazy, low life, unethical way of not addressing the problem... Its why we are in the stink pot with sentences way out of line and Congress won't address the issue as they don't want to loose any votes if they appear weak on crime...

Oh well, I guess I got my daily vent, upon deaf ears, no doubt....

Posted by: MidWestGuy | Feb 11, 2013 2:32:00 PM

Bill, you miss the point of my comments, perhaps because you felt a need to pick a fight after we spent 20 minutes agreeing with each other on the Chicago radio. You suggested in your first comment that we all should be ready to "accept a legislative judgment about what sentence is necessarily too harsh, given the nature of the offense, [and] accept its judgment about what sentence is necessarily too lenient." The problem, of course, is that this "legislative judgment" is now almost always subject to evasion through charging/bargaining realities.

Critically, I am not trying to lay blame only (or even mostly) on prosecutors for anything. Rather, I am just trying to highlight that judges lack any real means to evade this "legislative judgment" about the proper range of sentences "given the nature of the offense," whereas prosecutors have in every case charging/bargaining powers to evade this "legislative judgment." And, of most importance here, both the evasion power AND the felt need to evade --- going both up with multiple changes and down with sweet pleas --- is exacerbated when legislatures seek to micromanage sentencing ranges through rigid mandatory minimums or maximum. And, as the last 25 years have revealed in the federal sentencing system, enhancing the transparency and review of judicial discretion is not that hard, but enhancing the the transparency and review of prosecutorial discretion is very hard (especially in the federal system now that there are 100,000 cases per annum).

That all said, I agree 100% that if nobody would ever commit any more crimes, all these problems would go away completely.

Posted by: Doug B. | Feb 11, 2013 5:53:50 PM

Prosecutors and judges should be required to explain on the record how the actions they have taken will accomplish specific public objectives. In this way the quality of their actions can be evaluated in an objective way.

Posted by: Tom McGee | Feb 11, 2013 7:29:07 PM

Doug --

The fact that prosecutors write multiple count indictments -- in defense lingo, "stack charges" -- is not to be able to evade statutory minimums. If charges are multiple, it's because the defendant's crimes were multiple.

This is why I use the Sandusky example. Defense lawyers could easily say the charges were "stacked" there too. There were, after all, four dozen of them.

Does that mean the prosecutors were bad guys, seeking to arrogate sentencing power to themselves? Nope. What it means it that Sandusky spent a lot of time committing a lot of offenses. In addition, each episode, shall we say, with each little boy, involved more than one offense -- say, for example, kidnapping, unlawful restraint and sexual battery.

When a criminal breaks multiple laws in his crime spree, he should expect "count stacking." This is why it's not merely an air-headed truism for me to say that the criminal has himself to blame. The extent of his misbehavior before the prosecutor ever hears of him has a direct bearing on how the prosecutor is going to indict the case. It's not a power grab; it's more like a sad description of what the defendant's been up to.

Posted by: Bill Otis | Feb 11, 2013 10:12:46 PM

Bill, when you as a prosecutor decide to charge someone with committing a crime, what are you trying to accomplish in behalf of the people? What are your objectives? It sounds like you are just counting the pickets in a picket fence?

Posted by: Tom McGee | Feb 11, 2013 11:41:39 PM

Tom --

The people elect the legislators who adopt criminal statutes. What those statutes are designed to accomplish was beyond my pay grade to judge. Congress gets to decide whether they are worth the candle, not AUSA's.

Of course, while that answer is true, I understand that it punts the intent of your question, so I'll go further.

One reason I became a prosecutor was that I was satisfied that the statutes I would be involved in enforcing promote the public good. Some activities should be punished, deterred and suppressed: murder, rape, robbery, swindles, illegal firearms trafficking, and ripping off Medicare and other taxpayer-funded programs. I also wasn't too fond of the more controversial ones, such as drug dealing and CP. I think we're a better, healthier and more wholesome society without drugs and without the CP market, which CP consumption supports. I was and am, in addition, of the opinion that very little is easier in life than avoiding involvement in drugs. The way to avoid trouble with the law is just lead a normal life. It's not asking that much.

I did not and do not agree with every statute Congress passes (who does?), but I was satisfied that, as law careers go, a career in the USAO would do more to give back to this incredibly decent and generous country than a career making a lot of dough in private practice.

Posted by: Bill Otis | Feb 12, 2013 12:09:32 AM

Why would anyone care what that witch Anita Alvarez has to say. This is a woman who prosecuted citizens for filming police officers. She's a disgusting human being. She tried to ruin people's lives for holding public servants accountable. She is un-American, and if there were any justice in this world, this woman would be behind bars for the rest of her life.

Posted by: federalist | Feb 12, 2013 12:15:53 AM

well bill in these i agree and disagree.

"The fact that prosecutors write multiple count indictments -- in defense lingo, "stack charges" -- is not to be able to evade statutory minimums. If charges are multiple, it's because the defendant's crimes were multiple.

This is why I use the Sandusky example. Defense lawyers could easily say the charges were "stacked" there too. There were, after all, four dozen of them.

Does that mean the prosecutors were bad guys, seeking to arrogate sentencing power to themselves? Nope. What it means it that Sandusky spent a lot of time committing a lot of offenses."

in this with multiple vic's on multiple dates. Go for it! Each is a seperate charge.

this though i disagee with!

"In addition, each episode, shall we say, with each little boy, involved more than one offense -- say, for example, kidnapping, unlawful restraint and sexual battery."

State should be required to pick the one in most cases the highest charge. Rest are included in same.

This stupidity of 50 charges for the same 5 min's of activity is criminal and unconstutional.

We could also take a page from the business world. Your allowed "x" item at 2.99 each....But you can only get 4!

You got a capital case then you try it! i say "IT" as in ONE!

in a case like sandusky that might mean 20 trials. That might force the govt to step back and pick and choose what and who they charge.

as for the ideal that if the state can set a max sentence they can set a minimum. I have to agree. Of course it might also be time to clarife that Max Sentence as well. these 100+ year sentences are retarded. Sorry anything past "The rest of your natural life" is retarded and showboating!

Posted by: rodsmith | Feb 12, 2013 12:24:01 AM

Bill, using the Sandusky example conflates a case involving multiple victims and a long series of criminal events with other kinds of cases in which complaints of "stacked charges" is more common and valid. Consider, for example, the Vilca case from Florida in which a single laptop with child porn images (potentially downloaded all at one time) led to an indictment on 454 counts of CP possession, each count for each image found on the computer, and each count having a 5-year MAX set by the Florida legislature:

Of course, 454 pictures had to be downloaded onto the laptop in order for 454 charges to be filed. (Obviously, multiple crimes need to be alleged in order for multiple counts to be charged.) But those multiple crimes can be (and sometime are) the result of essentially one criminal event. And in the Vilca case, I do not think the Florida legislature, by setting a 5-year max for one count of possession, was thinking the max should be 2000+ years for having 400+ images on one laptop. Nevertheless, the state prosecutor here was able to evade any functional "legislative judgment" about the proper range of sentences "given the nature of the offense" by indicting on 454 charges rather than 1 or 5 or 10 or 20 or 100 or..... (In this case, notably, a pre-trial deal was offered for a 25-year sentence, but that was turned down.)

Of course, not every case (and I hope relatively few) involves prosecutorial charge stacking designed to evade applicable statutory sentencing maximums. (And a rape case like Sandusky is an especially silly example for purposes of our discussion here because even a single child rape charge includes a very high statutory max.)

Again, Bill, I know you are smart enough to get the nuanced point: the problem I mean to highlight is NOT multi-count indictments or even the tendency of prosecutors often to be eager --- for notice purposes as well as plea bargaining opportunities --- to charge a defendant on many counts in many ways. The problem is the hidden and unregulated (and perhaps unregulable) power that prosecutors often possess to evade the potential legislative limits/judgments you extol (and that I also advocate) at both the top and bottom of statutory ranges.

Posted by: Doug B. | Feb 12, 2013 6:06:57 PM

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