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July 6, 2018

Notable District Judge struggles against mandatory minimums, especially stacked gun charges

This new Politico article, headlined "Manafort judge emerges as skeptic of long mandatory minimum sentences," reports on a notable federal judge expressing notable concerns with mandatory minimums.  Here are excerpts:

The judge overseeing former Trump campaign chairman Paul Manafort's looming trial on tax and bank fraud charges is known as a tough jurist, often snapping at attorneys for ignoring his directions and rebuking defendants he views as insufficiently contrite.  But, in recent years, U.S. District Judge T.S. Ellis has begun to direct his public ire at an unusual target for a Reagan-appointed judge: laws that impose lengthy mandatory minimum sentences judges have no authority to waive or reduce.

Ellis has complained directly to Congress about what he's called the "excessive" sentences required for some offenders. He's also publicly lamented the situation, as he did recently during a drug dealer's sentencing that took place in an Alexandria, Virginia courtroom packed with national media, high-powered prosecutors and others awaiting a key hearing in the case against Manafort.

"This situation presents me with something I have no discretion to change and the only thing I can do is express my displeasure," Ellis said last week as he sentenced Frederick Turner, 37, to a mandatory minimum of 40 years in prison for dealing methamphetamine.  "I chafe a bit at that, but I follow the law. If I thought it was blatantly immoral, I'd have to resign. It's wrong, but not immoral."  Ellis told Turner's lawyer that any relief for his client lies with Congress. "I think you're knocking on the wrong door for a remedy. The remedy is across the river," the judge said.

However, in another case, the 78-year-old judge is going even further.  In April, confronted by a 28-year-old armed robbery convict facing a mandatory minimum 82-year sentence, Ellis' frustration grew so intense that he balked at imposing what he called a "very severe" sentence.  Instead, the judge recruited a high-powered law firm to scour the law in search of some way to avoid imposing what is effectively a life sentence on Lamont Gaines, who was convicted of a string of robberies of 7-11 stores and a check-cashing business.

The judge appointed Daniel Suleiman, a former aide to Attorney General Eric Holder, to come up with any argument that might help Gaines win a more lenient sentence. Suleiman, a partner at Covington & Burling, set on one possibility: a Supreme Court ruling in April that invalidated a law very similar to the one requiring the lengthy sentence for Gaines.  In a brief filed last month, Suleiman argued that the April decision has "direct application" to Gaines' case and "would permit this Court not to sentence Gaines to 82 years."

Federal prosecutors rejected that argument last week, insisting that the 82-year sentence is still required in the case. Assistant U.S. Attorneys Alexander Blanchard and Rebeca Bellows filed a brief urging Ellis to consider Gaines "real-world conduct" and reminding the judge that the defendant "endangered...victims' lives and instilled them with the fear they would be physically harmed."  Ellis has yet to signal whether he'll buy into the new argument to cut down the potential sentence in Gaines' case.

Ellis' current preoccupation with federal sentencing laws is not that the mandatory minimums for specific crimes are too harsh, but that in cases involving multiple charges the result can be unjust, resulting in decades of extra incarceration for a defendant who chooses to go to trial rather than plead guilty.  While prosecutors often settle for a guilty plea to a single serious charge, carrying, say, a 10-year minimum sentence, the government will pursue several such charges when a defendant goes to trial.  Federal law typically requires that sentences for crimes involving use of a gun run consecutively, a phenomenon often referred to as "stacking."...

In 2015, Ellis wrote to Congress about the "stacking" practice, calling it "grossly excessive and unjust." He said the law was supposed to cover felons who re-offended after leaving prison, but is being applied to those "who never had the chance to learn a lesson from the sentence imposed for the first conviction."

While efforts have been underway in Congress for years to ratchet back some of the mandatory sentences, the Trump administration's policy on the issue has been confusing. White House officials, including President Donald Trump's son-in-law and senior adviser Jared Kushner, have shown interest in criminal justice reform proposals.  However, Attorney General Jeff Sessions sent a letter to the Senate in February slamming a bipartisan bill that would limit the application of mandatory minimum sentences, including by reining in "stacking" of charges.  Sessions said the measure was ill-advised at a time when the U.S. is struggling with an epidemic of opioid abuse and deaths....

Back in 2015, though, Sessions said he believed changes to "stacking" were called for.  "I think the stacking issue is a problem....I would support reform on the stacking provisions," the Alabama senator said at a Judiciary Committee session on a similar reform bill that never passed....

Criminal justice reform advocates say Congress needs to step in and that laments like the one from Ellis last week underscore the urgency of the issue.  "The federal gun stacking law isn’t tough. It’s stupid. It’s irrational.  That’s why even conservative judges like Judge Ellis are urging Congress to fix it," said Kevin Ring of Families Against Mandatory Minimums. "It's a no-brainer."

July 6, 2018 at 10:39 AM | Permalink


It always seemed to me that one possible way of checking the charging discretion of the prosecutor, and by extension the criminal and sentencing statutes passed by the legislative body, is to simply inform juries of statutory sentencing laws applicable to the specific case. A jury cannot make a decision without being instructed on the law(s) that are relevant to the defendant's conduct, and I would argue that statutory sentencing laws are, likewise, laws relevant to the defendant's conduct. If juries in a given jurisdiction start balking at convicting defendants facing 80yrs for offense X because the prosecutor chose to stack charges, or apply mandatory sentencing statutes, then the prosecutor would need to modify how he or she charges in the future so as to be more in accord with the standards of the community. Additionally, it makes "real" the responsibility placed on the individual juror when he or she casts a vote. Casting judgement upon others, when deprivation of life or liberty are the consequence, is not supposed to be easy. Claiming abstract support for harsh penalties is one thing, actually being the one to decide whether a person, in a specific situation, should be subject that those penalties is quite another.

I know the obvious response is that jurors are supposed to decide cases in accord with the law, and informing them of the sentence might taint that judgement. In one sense, that is the whole point. If the idea of a jury being informed of the sentence leads one to conclude that their judgement will be tainted towards acquittal, then that may say something about nature of the sentence in question. Why isn't the presumption that jurors will be swayed towards conviction, and possibly demand higher sentences? But secondly, if the jury is supposed to decide cases in accord with the law, then they should be informed about the law. If a legislature wants to enact into positive law specific requirements with regards to sentencing, then one of the costs should be that the jury is informed about it, just as they are informed about every other positive law applicable to the defendant. Legislative members and prosecutors can then decide whether the benefits of statutory sentencing laws are worth the associated costs. It is essentially a check on their decision-making.

Posted by: anonuser879 | Jul 6, 2018 2:35:59 PM

Charge stacking is one of the biggest problems defendants in NC face. Stacking coupled with mandatory minimums lead to outrageously long sentences and in my opinion violation of double jeopardy principles.

We need to get away from the Blockburger test of DJ, which has become meaningless and go to a Brown v Ohio test of whether the proof of one crime proves the other. Greater and lesser offenses are the same offense for purposes of the Fifth Amendment under Brown.

I am litigating at least a half dozen cases where a defendant assaulted a victim and gets charged with Attempted Murder and Assault with a Deadly Weapon with Intent to Kill. The assault is used as the "overt act" element of the attempted murder. The proof of the Attempted Murder automatically proves the assault. Nevertheless, the def is punished for both charges.

Posted by: bruce cunningham | Jul 7, 2018 3:47:28 AM


That is a respectable proposal. My idea is different. I think that one of the reasons that prosecutors stack charges is because the very long sentences make for great publicity and thus campaign fodder. Prosecutors would be a lot less likely to stack charges if they had nothing to gain by doing so. So what I would like to see is a ban on prosecutors (a) either running for higher office and (b) a ban on them being judges.

Posted by: Daniel | Jul 7, 2018 12:34:08 PM

I think juries should be allowed to know about punishments. It pisses me off that they aren't. And since the Government so obviously can't get punishment right, why not let juries in on it? They might apply some common sense, and that would be a good thing.

That said, it's hard to feel much sympathy for someone who went around waving a gun in people's faces to rob them. Not only did he terrify a bunch of people, but he was also one trigger pull away from being a murderer. Evidence that the gun was unloaded or fake might make a difference here; absent that, those years seem well-earned.

Posted by: William Jockusch | Jul 8, 2018 4:59:04 PM

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