Monday, September 05, 2022

Noticing surprisingly low federal guideline range for sexual abuse of prisoners

For a variety of reasons, it can be all too easy to conclude that all of the federal sentencing guidelines are set way too high.  After all, federal judges impose sentences below the guidelines in more than half of all cases (see Table 8), and they do so even more frequently in certain child porn, drug and economic cases (see Table 10).  But this AP report on a notable recent federal sentencing in California highlights that there can be cases in which federal judges conclude the applicable guideline is way too low.  The piece is headlined "Chaplain who sexually abused inmates gets 7 years in prison," and here are just some of the details:

Behind a closed chapel office door inside a federal women’s prison in California, a chaplain forced inmates seeking his spiritual guidance to have sex with him, exploiting their faith and their powerlessness behind bars for his own gratification, prosecutors said.

James Theodore Highhouse was sentenced Wednesday to seven years in prison — more than double the recommended punishment in federal sentencing guidelines.  U.S. District Judge Haywood S. Gilliam Jr. said the guidelines, which call for a sentence of less than three years, “seriously underestimate the seriousness” of Highhouse’s conduct. “It’s hard to come up with the right words to describe how egregious an abuse of these victims this was,” Gilliam said.

Highhouse is among five workers charged in the last 14 months with sexually abusing inmates at the Federal Correctional Institution in Dublin, California, and the first to reach the sentencing phase of his case.... Highhouse must register as a sex offender once he’s released from prison, Gilliam said.

Highhouse, who was arrested in January and pleaded guilty in February, would tell women he abused at the Bay Area lockup, that everyone in the Bible had sex and that God wanted them to be together, prosecutors said.  An Army veteran, he pressured one inmate into intercourse on Veterans Day by telling her she needed to serve her country and on Thanksgiving by telling her she needed to show her gratitude for him, prosecutors said.

While Highhouse, 49, was charged only with abusing one inmate and lying to authorities, prosecutors say he engaged in predatory conduct with at least six women from 2014 to 2019 — including one he counseled at a veterans hospital where he worked before joining the federal Bureau of Prisons, where allegations were routinely ignored.  “Highhouse ruined my life — he truly did,” one inmate said in a victim impact statement. “I don’t even go to Church anymore because of him.  I have no trust in the Church and really, I don’t trust anyone because of what he did.”

Highhouse, enabled by a toxic culture of abuse and coverups at the prison, warned victims not to report him, telling one of them “no one will believe you because you’re an inmate, and I’m a chaplain,” prosecutors wrote in a sentencing memorandum. At the same time, prosecutors wrote, a prison counselor would rail about inmates “snitching” on employees, suggesting they instead “tell Trump about it,” referring to then-President Donald Trump.

Prosecutors had sought a 10-year prison sentence.  His lawyers asked for two years, the low end of the federal guidelines, which called for a sentence of 24 to 30 months.  Gilliam’s seven-year sentence matched the recommendation of probation officers who conducted Highhouse’s pre-sentence investigation....

All sexual activity between a prison worker and an inmate is illegal. Correctional employees enjoy substantial power over inmates, controlling every aspect of their lives from mealtime to lights out, and there is no scenario in which an inmate can give consent.... Highhouse pleaded guilty on Feb. 23 to two counts of sexual abuse of a ward, two counts of abusive sexual contact and one count of making false statements to federal agents.

All of the charges stem from allegations Highhouse repeatedly abused a female prisoner over a nine-month span in 2018 and 2019. That woman said in a victim impact statement that she cried herself to sleep after testifying before a grand jury about Highhouse’s abuse....

Other allegations against Highhouse, previously kept quiet by Dublin officials, came to light during the investigation, prosecutors said....  In May, an inmate now incarcerated at another federal prison facility reported that Highhouse raped her multiple times in his chapel office after she sought him out for counseling, prosecutors said.

There are many disconcerting and notable aspects of this story, but I am still struck that a prison official/chaplain can sexually abuse a prisoner repeatedly and yet only face a guideline sentencing range of 24 to 30 months.  That range is, generally speaking, well below the guideline ranges typically facing lower-level drug offenders and lower-level fraudsters.

September 5, 2022 in Federal Sentencing Guidelines, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (10)

Thursday, September 01, 2022

Longest prison term yet — 10 years — given to Jan 6 rioter who assaulted police officer

As reported in this Politico piece, a " federal judge on Thursday sentenced former New York cop Thomas Webster to 10 years in prison for assaulting a police officer outside the Capitol on Jan. 6, 2021, the longest sentence handed down yet in cases that arise from the attack."  Here is more:

U.S. District Court Judge Amit Mehta described Webster’s assault on D.C. police officer Noah Rathbun as one of the most haunting and shocking images from that violent day.

“I do wish you hadn’t come to Washington D.C. I do wish you had stayed home in New York, that you had not come out to the Capitol that day,” Mehta said. “Because all of us would be far better off. Not just you, your family, country. We’d all be far better off. Yet here we are.”

Mehta said he viewed Webster’s conduct as among the most egregious of any defendant sentenced so far. Until Thursday, the lengthiest sentences had been given to Texas militia member Guy Reffitt and local Virginia police officer Thomas Robertson, who were convicted by juries of attempting to obstruct congressional proceedings.

It’s the latest in a string of steeper sentences that have been issued as rioters facing felony charges — some of whom have taken their cases to trial — learn their fate from the judges who have presided over their cases for more than a year.

Images of Webster attempting to rip the gas mask off of Rathbun’s face amid broader chaos at the Capitol are among the most indelible images to emerge from the Jan. 6 attack. Mehta expressed incredulity that Webster took the stand in his own defense and attempted to argue that his effort to rip the officer’s gas mask off was really just to show him his hands and prove he wasn’t a threat.

Notably, though this case represents the longest sentencing to date for a Jan 6 rioter, the sentence of 10 years is still a full 7+ years below what the federal sentencing guidelines recommended (and what the federal prosecutors requested).

Some of many prior related posts:

September 1, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences | Permalink | Comments (4)

Monday, August 29, 2022

US Sentencing Commission releases big new report on "The Organizational Sentencing Guidelines: Thirty Years of Innovation and Influence"

Though a full new US Sentencing Commission was confirmed earlier this month, the outgoing folks are continuing to release notable new research reports as we await new action from the newbies.  The latest USSC report runs nearly 100 pages under the title "The Organizational Sentencing Guidelines: Thirty Years of Innovation and Influence." This USSC webpage provides this background with key findings:

This publication summarizes the history of Chapter Eight’s development and discusses the two substantive changes made to the elements of an effective compliance and ethics program. It then provides policymakers and researchers a snapshot of corporate sentencing over the last 30 years. Finally, the publication describes Chapter Eight’s impact beyond federal sentencing.

Key Findings:

  • The major innovations of the organizational guidelines are (1) incentivizing organizations to self-police their behavior; (2) providing guidance on effective compliance and ethics programs that organizations can implement to demonstrate efforts to self-police; and (3) holding organizations accountable based on specific factors of culpability.
  • The most significant achievement of Chapter Eight has been the widespread acceptance of the organizational guidelines' criteria for developing and maintaining effective compliance and ethics programs to prevent, detect, and report criminal conduct.
  • During the 30-year period since promulgation of the organizational guidelines, 4,946 organizational offenders have been sentenced in the 94 federal judicial districts. The majority of organizational offenders are domestic (88.1%), private (92.2%), and smaller organizations with fewer than 50 employees (70.4%).
  • Six offense types accounted for 80.4 percent of all organizational offenders from fiscal years 1992 through 2021.
    • Fraud (30.1%) and environmental (24.0%) offenses, accounted for more than half (54.1%) of all organizational offenses.
    • Other common offense types were antitrust (8.4%), food and drug (6.6%), money laundering (6.1%), and import and export crimes (5.2%).
  • Commission data suggests that the lack of an effective compliance and ethics program may be a contributing factor to criminal prosecutions against organizations.
    • Since fiscal year 1992, the overwhelming majority of organizational offenders (89.6%) did not have any compliance and ethics program.
    • Only 11 of the 4,946 organizational offenders sentenced since fiscal year 1992 received a culpability score reduction for having an effective compliance and ethics program.
    • More than half (58.3%) of the organizational offenders sentenced under the fine guidelines received a culpability score increase for the involvement in or tolerance of criminal activity.
    • Few organizational offenders (1.5% overall) received the five-point culpability score reduction for disclosing the offense to appropriate authorities prior to a government investigation in addition to their full cooperation and acceptance of responsibility.
    • Since fiscal year 2000, courts ordered one-fifth (19.5%) of organizational offenders to implement an effective compliance and ethics program.
  • Since fiscal year 1992, the courts have imposed nearly $33 billion in fines on organizational offenders. The average fine imposed was over $9 million and the median amount was $100,000.
  • Since fiscal year 1992, courts sentenced over two-thirds of organizational offenders (69.1%) to a term of probation and the average length of the term of probation imposed was 39 months.

August 29, 2022 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Feds seeking (within-guideline) sentence of 17+ years for former NYPD Jan 6 defendant

As detailed in this Insider article, headlined "DOJ seeks the longest Capitol riot prison term yet — 17 years for 'eye-gouging' ex-NYPD officer who swung a flagpole at police," late last week federal prosecutors filed another notable sentencing memorandum for another notable Jan 6 defendant who was convicted after a trial.  Here are excerpts:

Federal prosecutors are seeking the longest sentence yet for a Capitol rioter, asking the judge to give a former NYPD officer 210 months — seventeen and a half years — in prison.

Thomas Webster was found guilty on all six charges in May, including assaulting an officer and entering restricted grounds.  His sentencing is set for September 1.

In a statement arguing for a shorter sentence, Webster's lawyer said that he had been under "an extraordinary amount of influence" from former President Donald Trump's election falsehoods on January 6, 2021.

The criminal complaint describes Webster elbowing his way through the mob to be among those leading the charge against the Capitol police barricade, shouting at one officer: "You fucking piece of shit," and "you fucking commie fuck." Webster also wielded a metal flagpole at the riot. The DOJ later released body camera footage of him repeatedly hitting the metal barrier next to the officer with it until it broke, the complaint said. The footage then shows him tackling the officer to the ground and appearing to gouge the officer's eyes.

The jury rejected Webster's argument at trial that he acted in self-defense. Webster's status as a former member of law enforcement — he had served as part of former New York Mayor Mike Bloomberg's security detail — was at odds with his conduct towards the Capitol police, his defense conceded in court documents seen by Insider.

Nonetheless, lawyer James Monroe asked the judge to consider a shorter sentence on the grounds of Webster's later remorse and the notion that former President Donald Trump misled him.  Election-fraud lies "championed by former President Donald Trump exerted an extraordinary amount of influence" over people like Webster, who had received "relentless disinformation" from Trump's supporters, Monroe said....

That 17 years and six months recommended by the DOJ stretches far beyond the longest sentence handed down to Capitol rioters so far, more than seven years given to rioter Guy Reffitt.  In that case, prosecutors sought a much longer sentence of 15 years, closer to what is being asked for Webster.

Here is a link to the Government's sentencing memo in US v. Webster.

UPDATE: I helpful commenter flagged this sentencing memorandum from the defense which makes this pitch for a much lower sentence:

Mr. Webster's Guideline range, as calculated by Probation, falls at a total offense level 37 and a criminal history category I.  At this range, the recommended sentence is 210 to 240 months.  Presumably, recognizing the disparity of imposing such a sentence, Probation has recommended a sentence of 120 months.  Mr. Webster was arrested on February 22, 2021 and remanded to Federal custody until his release on June 29, 2021, totaling 127 days of incarceration.  Upon being released by the Court on personal recognizance, Defendant has remained on a strict home confinement under the supervision of pre-trial services' High Intensity Supervision Program without incident for the last 421 days.  Regardless of the recommended range, Mr. Webster respectfully proposes a downward variance to time served together with a term of supervised release as a sufficient sentence, which is not greater than necessary, to satisfy the statutory criteria set forth in 18 U.S.C. § 3553(a).

August 29, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (4)

Sunday, August 21, 2022

Might any victims of Theranos fraud urge leniency at sentencing for Elizabeth Holmes?

MaxresdefaultThe question in the title of this post is prompted by this Bloomberg article headlined "Elizabeth Holmes’s Victims Asked to Weigh in for Sentencing."  Here are excerpts:

The US Justice Department is seeking input from victims of the frauds at blood-testing startup Theranos Inc. committed by Elizabeth Holmes and her second-in-command, Ramesh “Sunny” Balwani.

The US Attorney’s Office in San Francisco on Thursday issued a “call for information” from victims following the separate convictions of the former executives for their roles in the collapse of the company once valued at $9 billion.  The federal judge in San Jose, California, who presided over the trials will use the information in determining their sentences, according to a statement from the office.

The universe of victims includes investors at all levels who poured more than $700 million into Theranos, some of whom hail from ultra-wealthy families and Silicon Valley venture capital firms, as well as thousands of patients who got inaccurate blood-test results from the startup’s clinics inside Walgreens stores....

Holmes was convicted in January of defrauding investors, while Balwani was found guilty in July on similar counts as well as defrauding patients. The trials for Holmes and Balwani were split because Holmes accused the ex-Theranos president, who was also her boyfriend, of sexually and verbally abusing her....  In their respective trials, the Theranos executives blamed each other for the fraud.

US District Judge Edward Davila will weigh the evidence presented at both trials, as well as the counts each was found guilty of, in determining their sentences. Criminal defense lawyers have said both Holmes and Balwani could face a decade in prison....  Both former executives remain free on bond and have asked Davila to set aside the jury verdicts. Holmes’s sentencing is scheduled for October; Balwani’s is set for November.

While prosecutors are busy gathering victim statements to make a case for lengthy periods of incarceration, the defendants are doing their own legwork in a bid for leniency, according to criminal defense attorney Seth Kretzer. “Two can play this game,” he said. “Both Balwani and Holmes will submit letters from their respective family and friends stating how horribly off they will all be with long prison terms.”

As this article explains, there are actually two sets of victims being asked for statements: "investor victims" and "patient victims." Here are links to the four-page statement for for each:

Victim Impact Statement For Investor Victims

Victim Impact Statement For Patient Victims

Notably, these forms do not include any questions that directly ask the victims to opine on the sentence that they would like to see the defendants receive.  But both forms close with this fairly open-ended query: "Is there anything else you would like the sentencing Judge to know about your experience with Theranos, Inc.?"

Prior related posts:

August 21, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (0)

Saturday, August 20, 2022

US Sentencing Commission reports on "Federal Robbery: Prevalence, Trends, And Factors In Sentencing"

The US Sentencing Commission has released this new research report that provides a "comprehensive study of robbery offenders sentenced in fiscal year 2021 provides an analysis of the characteristics of robbery offenders, their criminal history, and their sentences imposed."  Additional background and Key Findings are available at this USSC webpage, and here are some highlights from that page:

The report also provides analyses on the prevalence of robbery offenses and how they were committed, including who was robbed, what was taken, the use or threatened use of physical force, the use of a firearm or other dangerous weapon, and whether any victim was injured or killed during a robbery.

This report builds upon the Commission’s recent observations regarding the high recidivism rates among federal robbery offenders.

Key Findings

  • Robbery offenders have consistently comprised a small but increasing proportion of the federal criminal caseload.
    • During fiscal years 2012 to 2021, the proportion of robbery offenders increased from 1.9 percent to 2.3 percent of the federal caseload....
  • Robbery offenders have criminal histories that are more extensive and more serious than other violent offenders.
    • Only one-quarter (26.5%) of robbery offenders were in the least serious criminal history category, CHC I, compared to 40.7 percent of other violent offenders....
  • Robbery offenders often engaged in dangerous aggravating conduct. In fiscal year 2021, a majority of robbery offenses involved dangerous weapons and threats of physical force against a victim.
    • Over three-quarters (77.6%) of robberies involved dangerous weapons. Firearms were the predominant type of weapon — they were present in 79.8 percent of robberies involving weapons.
    • The overwhelming majority (89.7%) of robberies involved a threat of physical force against a victim, and over one-quarter (25.7%) involved the use of physical force against a victim. A victim sustained bodily injury in 11.8 percent of robberies.
  • Robbery offenders received substantial sentences—on average 105 months of imprisonment in fiscal year 2021 — but sentences varied significantly depending upon whether the offender was also convicted under 18 U.S.C. § 924(c).
    • A substantial proportion (40.6%) of robbery offenders sentenced in fiscal year 2021 also had a conviction under section 924(c) for using or carrying a firearm during the offense.
    • The average sentence imposed for robbery offenders also convicted under section 924(c) was 155 months of imprisonment, compared to an average sentence of 71 months for robbery offenders without a section 924(c) conviction.

August 20, 2022 in Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (4)

Friday, August 19, 2022

"The Myth of the All-Powerful Federal Prosecutor at Sentencing"

The title of this post is the title of this new article authored by Adam M. Gershowitz in the Summer 2022 issue of the Saint John's Law Review.  Here is its abstract:

Prosecutors are widely considered to be the most powerful actors in the criminal justice system.  And federal prosecutors are particularly feared.  While some recent scholarship casts doubt on the power of prosecutors, the prevailing wisdom is that prosecutors run the show, with judges falling in line and doing as prosecutors recommend.

This Article does not challenge the proposition that prosecutors are indeed quite powerful, particularly with respect to sentencing.  There are many structural advantages built into the system that combine to give prosecutors enormous influence over sentences.  For example, prosecutors have considerable power to bring a slew of charges that will increase the prospects of a large sentence.  Prosecutors also hold the cards in determining whether defendants should receive the benefit of substantial assistance motions for their cooperation.  The wide swath of aggravating factors in criminal statutes and the Federal Sentencing Guidelines also gives prosecutors considerable bargaining power over sentencing in plea bargaining.  Moreover, prosecutors have a strong lobbying presence to push legislatures to enact tougher sentencing regimes.  All told, there are considerable structural advantages that prosecutors hold in influencing the ultimate sentence a defendant will face.  This Article therefore does not question that prosecutors hold a lot of power with respect to sentencing.

What this Article does question however is the supposedly significant persuasive power that federal prosecutors have to influence judges at sentencing hearings.  After criminal charges have been filed, after the plea bargains ⎯ or trials ⎯ have concluded, and after the guidelines ranges have been calculated, we eventually reach the final moment in the courtroom.  Prosecutors stand in front of the judge and argue for a specific sentence that should be imposed on a defendant.  Often the sentence recommended by the prosecution varies considerably from the position advocated by the defense attorney; prosecutors sometimes base their arguments on drug quantities that are higher than were computed in the guidelines calculations, or they argue for other sentencing enhancements to apply.  Prosecutors sometimes argue strenuously against mitigating factors raised by the defense, such as poor health, family problems, or advanced age.  In short, the final event in a criminal case is a good old-fashioned, silver-tongued lawyering battle between the prosecutor and the defense attorney. 

August 19, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, August 11, 2022

Another Jan 6 rioter who was convicted at trial sentenced to 87 months in federal prison

Last week, as discussed in this post, Guy Reffitt, the first Jan. 6 defendant to be convicted at a jury trial (rather than through plea), was sentenced to 87 months in federal prison.  This AP piece reports on today's sentencing of another Jan 6 defendant conviction at trial and the similar outcome (coming from a different sentencing judge):

An off-duty Virginia police officer who stormed the U.S. Capitol on Jan, 6, 2021, with a fellow officer was sentenced Thursday to more than seven years in prison, matching the longest prison sentence so far among hundreds of Capitol riot cases.

Former Rocky Mount Police Sgt. Thomas Robertson declined to address the court before U.S. District Judge Christopher Cooper sentenced him to seven years and three months in prison.  Cooper also sentenced Robertson to three years of supervised release after his prison term.

Federal prosecutors had recommended an eight-year prison sentence for Robertson.  His sentence equals that of Guy Reffitt, a Texas man who attacked the Capitol while armed with a holstered handgun.  Robertson gets credit for the 13 months he has already spent in custody.  Robertson has been jailed since Cooper ruled last year that he violated the terms of his pretrial release by possessing firearms.

The judge said he was troubled by Robertson's conduct since his arrest — not only his stockpiling of guns but also his words advocating for violence.  After Jan. 6, Robertson told a friend that he was prepared to fight and die in a civil war and he clung to baseless conspiracy theories that the 2020 election was stolen from then-President Donald Trump, the judge noted.

Sentencing guidelines calculated by Cooper recommended a prison term ranging from seven years and three months to nine years.  “It's a long time because it reflects the seriousness of the offenses that you were convicted of,” the judge said.

In April, a jury convicted Robertson of attacking the Capitol to obstruct Congress from certifying Joe Biden’s 2020 presidential victory.  Jurors found Robertson guilty of all six counts in his indictment, including charges that he interfered with police officers at the Capitol and that he entered a restricted area with a dangerous weapon, a large wooden stick....

Robertson traveled to Washington on that morning with another off-duty Rocky Mount police officer, Jacob Fracker, and a third man, a neighbor who wasn't charged in the case.  Fracker was scheduled to be tried alongside Robertson before he pleaded guilty to a conspiracy charge in March and agreed to cooperate with federal authorities. Cooper is scheduled to sentence Fracker next Tuesday.

Prosecutors have asked Cooper to spare Fracker from a prison term and sentence him to six months of probation along with a period of home detention or “community confinement.”  They said Fracker's “fulsome” cooperation and trial testimony was crucial in securing convictions against Robertson.

Robertson's lawyer, Mark Rollins, sought a prison sentence below two years and three months. He questioned the fairness of the wide gap in sentences that prosecutors recommended for Robertson and Fracker given their similar conduct. Robertson served his country and community with distinction, his lawyer told the judge. “His life already is in shambles,” Rollins said....

In a letter addressed to the judge, Robertson said he took full responsibility for his actions on Jan. 6 and “any poor decisions I made.” He blamed the vitriolic content of his social media posts on a mix of stress, alcohol abuse and “submersion in deep ‘rabbit holes’ of election conspiracy theory.” “I sat around at night drinking too much and reacting to articles and sites given to me by Facebook” algorithms, he wrote.

A few of many prior related posts:

August 11, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Monday, August 01, 2022

District judge sentences first Jan 6 rioter convicted at trial to 87 months in federal prison (which was bottom of calculated guideline range)

As reported in this Politico article, after an extended sentencing hearing, a "Texas militia member on Monday received the longest sentence to date of any participant in the Jan. 6, 2021, attack on the Capitol: seven-and-a-quarter years in prison."  Here are some of the notable details:

Guy Reffitt, 49, was the first Jan. 6 defendant to go before a jury and was convicted in March on five felony charges, including interfering with police during civil disorder, obstructing the tallying of the electoral votes and threatening his children if they reported him to authorities.

However, U.S. District Court Judge Dabney Friedrich declined the Justice Department’s request to treat Reffitt’s crimes as terrorism, which would have substantially increased the recommended sentence under federal guidelines. 

It was federal prosecutors’ first request to draw tougher punishment for a Jan. 6 defendant by classifying his actions as domestic terrorism, but the judge concluded it was not appropriate to apply the more severe sentencing guidelines permitted under federal law in terrorism-related cases. Friedrich said applying the sentencing enhancement to Reffitt would create an “unwarranted sentencing disparity” with other cases involving similar threats or conduct related to the Capitol riot.

“There are a lot of cases where defendants possessed weapons or committed very violent assaults,” Friedrich noted, highlighting that the most severe sentences handed down in Jan. 6 cases thus far were a little more than five years while prosecutors asked for a 15-year sentence against Reffitt. “The government is asking for a sentence that is three times as long as any other defendant and the defendant did not assault an officer.”...

Assistant U.S. Attorney Jeffrey Nestler said Reffitt’s discussions before and after Jan. 6 make clear he was intent on carrying out his repeated threats to drag Speaker Nancy Pelosi and Senate Minority Leader Mitch McConnell from the Capitol building by force. In discussions caught on video, Reffitt was recorded referring to his desire to listen to the lawmaker’s heads bouncing down the Capitol steps. “He was planning to overtake our government. He wasn’t just trying to stop the certification,” Nestler said. “He wasn’t done. Jan. 6 was just a preface. ... Mr Reffitt is in a class all by himself.”

However, Friedrich said prosecutors had urged much shorter sentences in cases involving people who were directly involved in actual violence against police. “You’re making recommendations that are way different than you’re making in this case — way different,” said the judge, an appointee of President Donald Trump.

Friedrich also said she worried that Reffitt not be unduly punished for deciding to go to trial, rather than enter into a plea bargain with prosecutors. “His decision to exercise his constitutional right to go to trial should not result in a dramatically different sentence,” she said.

Nestler also noted that Reffitt was convicted of having a handgun on his hip while on the Capitol grounds, which Friedrich conceded was an important distinction from the other cases to reach sentencing thus far. “Huge, huge … and does the firearm deserve three times the sentence if it was not brandished or used in any way?” the judge asked.

Another unusual aspect of Reffitt’s case is that he was convicted of threatening to injure his two children if they discussed his actions on Jan. 6 with authorities. One of those children, Peyton Reffitt, spoke briefly during Monday’s hearing to urge leniency for her father. She suggested that Trump was more responsible for the events that day than her father was. “My father’s name was not on all the flags that were there that day that everyone was carrying that day,” Peyton said. “He was not the leader.”

As noted in a prior post, the presentence report had calculated Reffitt's guidelines range to be 108 to 135 months, but Judge Friedrich did not apply all the suggested guideline enhancement and ultimately  sentence him at the bottom of the guideline range calculated by her to be 87 to 108 months.

A few of many prior related posts:

UPDATE: I found notable this Insider article which is headlined "Trump 'deserves life in prison' says daughter of January 6 rioter who was sentenced to 7 years behind bars." Here are excerpts:

The daughter of a man sentenced to 7 years in prison on Monday for taking part in the January 6 insurrection told reporters that the former president, whose supporters stormed the US Capitol, deserves to spend the rest of his life behind bars if her father was going to get his sentence....

After Reffitt was sentenced, his daughters spoke to the media and argued that it was not fair for their father to receive such a long prison term while more powerful people remain free.

"To mark my dad as this horrible person, and then having him prosecuted like this, when somebody is maybe even able to get elected again? Doesn't seem right to me," Sarah Reffitt told reporters.

"Trump deserves life in prison if my father is in prison for this long," Petyon Reffitt added.

August 1, 2022 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Tuesday, July 26, 2022

US Sentencing Commission reports on "Older Offenders in the Federal System"

Cover_older-offendersI received an email this morning spotlighting two interesting and important new data reports from the US Sentencing Commission. One of these new USSC reports is this 68-page effort titled "Older Offenders in the Federal System." Highlights are provided via this USSC webpage where one can find this "Summary" and "Key Findings":

Congress requires courts to consider several factors when determining the appropriate sentence to be imposed in federal cases, among them the “history and characteristics of the defendant.”  The sentencing guidelines also specifically authorize judges to consider an offender’s age when determining whether to depart from the federal sentencing guidelines.  In this report, the Commission presents information on relatively small number of offenders who were aged 50 or older at the time they were sentenced in the federal system.  In particular, the report examines older federal offenders who were sentenced in fiscal year 2021 and the crimes they committed, then assesses whether age was given a special consideration at sentencing.  This report specifically focuses on three issues that could impact the sentencing of older offenders: age and infirmity, life expectancy, and the risk of recidivism.

Older offenders commit fraud and sexual offenses at higher rates than all other offenders.

  • Older offenders had roughly three times the rate of fraud offenses (17.8%) and a greater proportion of sex offenses (7.3%), compared to offenders under age 50 (6.4% and 4.1%, respectively).
  • The rate of offenders committing sex offenses increased incrementally as the age of the offender increased. Offenders 70 and older committed sex offenses at nearly three times the rate (11.9%) of offenders under the age of 50 (4.1%).

Roughly 40 percent (40.7%) of older offenders had a physical disability prior to arrest for the instant offense.

  • The rate of offenders with a disability increased incrementally as offenders' age at sentencing increased, so that roughly two-thirds (63.3%) of offenders 70 and older had a physical disability.

About one-third (31.2%) of older offenders had used drugs or misused prescription drugs in the year prior to arrest.

  • Among older drug users, the most used substances were marijuana (32.4%) and methamphetamine (28.5%).

Older offenders have less extensive criminal histories, compared to all other federal offenders.

  • More than half (52.5%) of older offenders were in Criminal History Category (CHC) I, the lowest criminal history category, compared to 37.5 percent of offenders under 50 years of age.

The overwhelming majority (80.1%) of older offenders were sentenced to prison. However, older offenders were also more likely to receive fines and alternative sentences, compared to offenders under age 50.

  • The oldest offenders were the most likely to receive an alternative sentence or fine; roughly a third (31.3%) of offenders 65 through 69 and more than 40 percent (42.1%) of offenders 70 and older received an alternative sentence or fine.
  • The oldest offenders were most likely to have received sentences that exceed life expectancy.

Nearly forty percent (38.6%) of offenders who were sentenced at 70 years of age or older received a sentence that exceeds their life expectancy, compared to 7.1 percent of offenders 65 through 69, and less than one percent of offenders under the age of 50.

In fiscal year 2021, a nearly equal proportion of older offenders (36.7%) were sentenced within the guideline range as received a below range variance (35.5%).

  • The proportion of offenders receiving variances increased as an offender’s age at sentencing increased, with the oldest offenders being the most likely to receive a variance.
  • Offenders 65 and older were nearly as likely to receive a variance (48.9%) as they were to receive a sentence under the Guidelines Manual (51.1%).

The recidivism rate of older offenders (21.3%) was less than half that of offenders under the age of 50 (53.4%).

  • As offenders’ age at sentencing increased, recidivism rates decreased.
  • Recidivism events for older offenders were less serious, compared to offenders under the age of 50.
  • Older offenders take a longer time to recidivate, compared to their younger peers.

July 26, 2022 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (0)

US Sentencing Commission reports on "Life Sentences in the Federal System"

Cover_life-sentencesI received an email this morning spotlighting two interesting and important new data reports from the US Sentencing Commission. One of these new USSC reports is this 40-page effort titled simply "Life Sentences in the Federal System." Highlights are provided via this USSC webpage where one can find this "Summary" and "Key Findings":

There are numerous federal criminal statutes authorizing a sentence of life as the maximum sentence allowed, such as for offenses involving drug trafficking, racketeering, and firearms crimes.  While convictions under these statutes are common, sentences of life imprisonment are rare, accounting for only a small proportion of all federal offenders sentenced. 

In February 2015, the Commission released Life Sentences in the Federal Criminal Justice System, examining the application of life sentences by federal courts during fiscal year 2013.  Using data from fiscal years 2016 through 2021, this report updates and augments the Commission’s previous findings by examining the offenses that led to the life sentences imprisonment imposed, along with offender demographics, criminal histories, and victim-related adjustments.

Offenders Sentenced to Life Imprisonment

  • During fiscal years 2016 through 2021, there were 709 federal offenders sentenced to life imprisonment, which accounted for 0.2 percent of the total federal offender population.
  • Almost half (48.7%) of offenders sentenced to life imprisonment were convicted of murder.
  • Approximately half (47.5%) of offenders sentenced to life imprisonment were found to either have possessed a weapon in connection with their instant offense or were convicted under 18 U.S.C. § 924(c) — for possession or use of a firearm in furtherance of a crime of violence or drug trafficking crime.  This is almost five times the rate for offenders who were sentenced to less than life imprisonment (9.8%).
  • Nearly one-third (31.4%) of offenders sentenced to life imprisonment received an aggravating role enhancement as an organizer, leader, manager, or supervisor in the offense, which is approximately eight times higher than those sentenced to less than life imprisonment (4.2%).
  • Offenders sentenced to life imprisonment qualified as repeat and dangerous sex offenders in 11.8 percent of cases, in comparison to 0.6 percent of offenders sentenced to less than life imprisonment.
  • The trial rate of offenders sentenced to life imprisonment was 75.6 percent, which was over thirty times higher than the 2.3 percent trial rate for all other federal offenders.
Offenders Sentenced to De Facto Life Imprisonment
  • There were 799 offenders sentenced to de facto life imprisonment, which accounted for 0.2 percent of the total federal offender population.
  • Half (50.6%) of offenders sentenced to de facto life imprisonment were convicted of sexual abuse.
  • One-third (33.2%) of offenders sentenced to de facto life imprisonment were found to either have possessed a weapon in connection with their instant offense or were convicted under 18 U.S.C. § 924(c) — for possession or use of a firearm in furtherance of a crime of violence or drug trafficking crime.
  • More than one-in-seven (15.4%) offenders sentenced to de facto life imprisonment received an aggravating role enhancement as an organizer, leader, manager, or supervisor in the offense.
  • Offenders sentenced to de facto life imprisonment qualified as repeat and dangerous sex offenders in 39.4 percent of cases.
  • The trial rate of offenders sentenced to de facto life imprisonment was 39.4 percent.

July 26, 2022 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Wednesday, July 20, 2022

"Federal Sentencing of Illegal Reentry: The Impact of The 2016 Guideline Amendment"

Cover_illegal-reentryThe title of this post is the title of this notable new US Sentencing Commission report. This relatively short report (only 38 pages) is summarized on this USSC webpage providing an "Overview" and a bunch of "Key Findings." Here is that overview and some of the key findings:

Overview

In 2016, the United States Sentencing Commission promulgated an amendment that comprehensively revised the guideline covering illegal reentry offenses — §2L1.2 (Unlawfully Entering or Remaining in the United States).  The amendment, Amendment 802, became effective November 1, 2016, and represented the most comprehensive revision of a major guideline in the last two decades.  This report examines the impact of Amendment 802 by looking back at sentencings under §2L1.2 over the last ten fiscal years.  The report first describes the concerns leading to the amendment, including that §2L1.2’s 12- and 16-level increases were overly severe and led to variances, and that using the “categorical approach” to apply enhancements was overly complex, resource intensive, and increased litigation and uncertainty.  After outlining the changes made by Amendment 802, the report assesses its impact on guideline application for §2L1.2 offenders and on appeals involving §2L1.2.

Key Findings

  • Over the last ten fiscal years, immigration offenders have represented either the highest number or second-highest number of offenders sentenced annually.  The vast majority of immigration offenders were sentenced under §2L1.2.
     
  • Amendment 802 to the Guidelines Manual ameliorated concerns about the severity of §2L1.2’s enhancements.
    • While variance rates for §2L1.2 offenders remained largely consistent before and after the amendment, courts imposed sentences within the applicable guideline range at a higher rate on average (66.0%) in the five fiscal years after the amendment than the five fiscal years before the amendment (56.6%). Furthermore, the difference between the average guideline minimum and the average sentence imposed decreased from at least three months before the amendment to no more than one month between fiscal years 2017 and 2020, and slightly over two months in fiscal year 2021.
    • These sentencing trends likely are attributable to the decreasing severity of the sentencing enhancements applicable to offenders sentenced under §2L1.2. The number of offenders who received sentencing increases of 12 or more offense levels decreased substantially from 26,094 in the five fiscal years before the amendment to 5,497 in the five fiscal years after the amendment. The average sentencing increase similarly decreased from seven to four offense levels.
       
  • Amendment 802 significantly simplified guideline application and reduced appeals.
    • In the five fiscal years before the amendment, 31,824 offenders sentenced under §2L1.2 (37.1%) received a sentencing enhancement that potentially required courts to analyze predicate offenses using the categorical approach. That number decreased considerably to only 59 offenders (0.1%) in the five fiscal years after the amendment.
    • After Amendment 802, the number of opinions on §2L1.2 appeals decreased by 90 percent, from 239 in fiscal year 2017 to 24 in fiscal year 2021. Notably, this decline occurred even while the number of immigration sentencings rose steadily from fiscal year 2017 to a ten-year high in fiscal year 2019. By contrast, before the amendment, appellate courts issued 249 opinions on §2L1.2 appeals in fiscal year 2016 alone, and two-thirds of the appeals raised application issues relating to the categorical approach.

July 20, 2022 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Saturday, July 16, 2022

Feds seeking (above-guideline) sentence of 15 years for first Jan 6 defendant to be sentenced after trial convictions

Based on a recent AP accounting of the January 6 riot cases, I believe there have already been around 200 defendants sentenced for their activities related to the Capitol riot, but all of those sentences have been handed down after guilty pleas.  As detailed in this Insider article, federal prosecutors are seeking a particularly severe sentence for the first rioter due to be sentenced following a conviction at trial.  Here are the basics:

Guy Reffitt, the first Capitol rioter convicted at trial on charges stemming from the January 6, 2021 insurrection, should receive a 15-year prison sentence for his "central role" in leading a pro-Trump mob that clashed with police protecting Congress, federal prosecutors said in a court filing Friday.

A jury in Washington, DC, needed just hours in early March to find Reffitt guilty on all five charges he faced in connection with the Capitol attack, including obstruction of an official proceeding. Reffitt, of Texas, was also found guilty of entering restricted Capitol grounds with a handgun and with later threatening his children to keep them from reporting him to law enforcement.

In a 58-page court filing, federal prosecutors argued that Reffitt played a pivotal role in "overwhelming officers and showing the mob the way forward at the outset of the riot." The language echoed their description of Reffitt at his weeklong trial, where prosecutors called Reffitt the "tip of this mob's spear" and played video footage of him ascending stairs up to the Capitol in tactical gear, with fellow members of the pro-Trump mob following him.

If ordered, the 15-year sentence would go down as the longest prison term given to a Capitol rioter to date, nearly tripling the more than 5-year sentence Robert Scott Palmer received after throwing a fire extinguisher at police during the January 6 attack. Judge Dabney Friedrich, a Trump appointee confirmed in 2017, is set to sentence Reffitt on August 1....

In a separate court filing Friday, Reffitt's defense lawyer argued that he should receive a sentence of no longer than 2 years in prison. His lawyer, F. Clinton Broden, noted that Reffitt never entered the Capitol.

The Government's lengthy sentencing memorandum is available at this link, and it begins this way:

For Defendant Guy Reffitt’s central role in leading a mob that attacked the United States Capitol while our elected representatives met in a solemn Joint Session of Congress — including his intention to use his gun and police-style flexicuffs to forcibly drag legislators out of the building and take over Congress, and his later threats to harm his children if they turned him into the FBI — the government respectfully requests that this Court sentence him to 15 years of incarceration.

The Court should depart upwards from the PSR’s Sentencing Guidelines range of 9 to 11.25 years (108 to 135 months)2 of incarceration both because Reffitt’s crime “was calculated to influence or affect the conduct of government by intimidation or coercion,” U.S.S.G. § 3A1.4, cmt. n.4, and because the Guidelines’ grouping analysis provides “inadequate scope” for Reffitt’s possession of multiple weapons in the commission of his offenses, see U.S.S.G. § 3D1.4, bkgd. cmt. (upward departure based on grouping); § 5K2.6 (upward departure based on use of weapons).

The defense's sentencing memorandum is available at this link, stresses to the court the "need to avoid sentencing disparities" and it contends that "most if not all defendants who received a sentence of greater than 24 months imprisonment are at a whole different level than Mr. Reffitt."  It concludes this way:

Based upon the foregoing, Undersigned Counsel respectfully suggests that a sentence of no more than 24 months imprisonment is, in fact, sufficient but not greater than necessary to comply with the purposes of 18 U.S.C. § 3553.

Some of many prior related posts:

July 16, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (21)

Thursday, July 14, 2022

Might SCOTUS finally be ready to take up acquitted conduct sentencing enhancements?

Long-time readers know I have long bemoaned the use of so-called "acquitted conduct" to enhance sentencing in the federal system.  My moans have sometimes found expression in amicus briefs in support of efforts to get the Supreme Court to take up this issue, and I surmise any number of defendants have brought this issue to SCOTUS in cert petitions over the last two decades.  But the Justices have persistently declined to take up this issue (though, back in the 2014 Jones case, Justice Scalia joined by Justices Ginsburg and Thomas dissented from the denial of cert on this topic). 

But hope springs eternal, and this month I had the pleasure of working with great lawyers at Squire Patton Boggs to file another amicus brief on this issue, this one in support of petitioner Dayonta McClinton.  I blogged here about McClinton's case after the Seventh Circuit affirmed his 19-year sentence that was based heavily on the judge's determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case.

I have a smidge of extra hopefulness for SCOTUS review this time because of the recent transition of Justices.  Justice Breyer, who always opposed the Apprendi/Blakely line of Sixth Amendment cases and always supported broad judicial fact-finding at sentencing, likely was never too keen on this issue.  But Justice Breyer is no longer considering cert petitions, and I am hopeful that his replacement, Justice Ketanji Brown Jackson, might be more inclined to vote for cert on this topic.  (In addition, Justice Kavanaugh expressed concerns about acquitted conduct when on the DC Circuit, and Justice Gorsuch has long expressed strong affinity for jury trial rights.)  And today brought an extra jolt of hopefulness because the Supreme Court officially requested that the Government respond to the cert petition after the Solicitor General had waived its right to file a response.

Because every cert petition is a long shot, I will still going to be keeping my expectations tempered.  But, I do feel fairly confident that the Justices will eventually take this issue up, so I hope they come to see that there is no time like the present.

A few recent of many, many, many prior related posts:

July 14, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (18)

Another REPOSTING: Call for commentary for Federal Sentencing Reporter issue to provide "Advice for a new U.S. Sentencing Commission"

With the topic so timely at a time of year when so much can get forgotten, I am eager to keep reminding everyone here about this call for papers from the Federal Sentencing Reporter:

Seeking Commentaries for Federal Sentencing Reporter's October Issue to provide “Advice for a new U.S. Sentencing Commission”

Last month, President Joseph Biden announced seven nominees for the U.S. Sentencing Commission, and in early June the Senate Judiciary Committee held a confirmation hearing for this full slate of nominees.  The Commission has lacked a quorum since 2019, which has prevented the agency from amending the US Sentencing Guidelines in any way. President Biden’s nominations, if the confirmation process continues to move forward this summer, should allow an all-new Commission to get to work on federal sentencing reform matters big and small.  The editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share “Advice for a new U.S. Sentencing Commission,” for publication in the October 2022 FSR issue.

FSR commentaries for this issue could tackle big structural issues (such as how the Commission might review and reassess the entire guidelines system), smaller statutory issues (such as how to respond to reforms Congress enacted in the FIRST STEP Act), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes advice from all perspectives, including lessons the Commission could learn from the states and other countries.  Everyone with an informed interest in federal sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with light use of citations in the form of endnotes.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).

Priority will be given to drafts submitted by July 25, 2022, and later submissions will be considered as space permits. Submissions should be sent electronically to berman.43 @ osu.edu with a clear indication of the author and the author’s professional affiliation.

July 14, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

"What Do Federal Firearms Offenses Really Look Like?"

Cover_2022-firearmsThe title of this post is the title of this notable new US Sentencing Commission report. This relatively short report (only 46 pages) is summarized via this USSC webpage providing an "Overview" and a bunch of "Key Findings." Here is that overview and some of the key findings:

This report provides in-depth information on federal firearms offenders sentenced under the primary firearms guideline, §2K2.1. The Commission has published reports on various aspects of firearms offenses, including reports on armed career criminals, mandatory minimum penalties, and firearms offenders’ recidivism rates. The Commission’s prior research shows that firearms offenders are generally younger, have more extensive criminal history, and are more likely to commit a new crime than other offenders. The Commission’s previous research also shows that firearms offenders are more likely than other offenders to engage in violent criminal behavior. This publication continues the Commission’s work and provides detailed information about offenders sentenced under §2K2.1.

July 14, 2022 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Gun policy and sentencing | Permalink | Comments (0)

Saturday, July 09, 2022

Kisor role: how often is deference to the federal sentencing guidelines' commentary litigated?

In addition to starting with a terrible pun, the title of my post reflects my uncertainty about how much to make of the (slow-burn) uncertainty regarding application of the federal sentencing guidelines' commentary.  It is now over three years since the Supreme Court in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), recast for federal courts "the deference they give to agencies ... in construing agency regulations."  The Kisor case had nothing to do with the federal sentencing guidelines, but lower courts have since grappled with whether and when Kisor means that the commentary to the guidelines no longer should always be followed.    

This Kisor question is on my mind because a helpful colleague made sure I did not miss the Third Circuit's work last week in US v. Adair, No. 20-1463 (3d Cir. June 30, 2022) (available here).  The panel in Adair does a thorough job explaining how Kisor has been understood (by some circuits) to recalibrate whether and how sentencing courts must show deference to the the guidelines' commentary.  But so far a majority of circuits have not read Kisor to require changing the general tendency to treat guidelines' commentary as binding just like the actual guidelines (as the Supreme Court suggested back in Stinson v. US, 508 U.S. 36 (1993)). 

I flagged this issue in this post last year noting a big Sixth Circuit ruling, US v. Riccardi, 989 F.3d 476 (6th Cir. 2021), which held that certain commentary was an "improper expansion" of the meaning of "loss" in a fraud case.  I thought the Riccardi ruling could lead to lots of Kisor-impacted litigation because many fraud cases involve commentary that arguably expands on the guideline term "loss."  And yet, this issue recently merited only a single footnote in the USSC's recent "Loss Calculation" Primer, leading me to think this issue is not actually being litigated much. 

I know there have been at least a few cert petitions urging the Supreme Court to take up what Kisor means for the guidelines and their commentary, but perhaps the Justices do not yet see this issue roiling the lower courts enough to demand its intervention.  That said, I have noticed that a number of recent student notes on this topic:

So, dear readers, it is mostly law students spending lots of time on this intricate issue or are a lot more litigants and lower courts grappling with this Kisor role than I can see?

July 9, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Thursday, July 07, 2022

In accord with plea deal, federal judge give (below-guideline) sentence of 21 years to Derek Chauvin for civil rights violations

As reported in this post back in December, Derek Chauvin pleaded guilty in federal court to civil rights violations arising from his murder of George Floyd.  He did so with a plea deal in place that would bind the federal judge to impose a sentence of between 20 and 25 years even though Chauvin's advisory guideline range is life imprisonment.  Today, as reported here by the AP, the judge decides to sentence toward the bottom of this plea bargained range:

A federal judge on Thursday sentenced Derek Chauvin to 21 years in prison for violating George Floyd’s civil rights, telling the former Minneapolis police officer that what he did was “simply wrong” and “offensive.”

U.S. District Judge Paul Magnuson sharply criticized Chauvin for his actions on May 25, 2020, even as he opted for the low end of a sentencing range called for in a plea agreement. Chauvin, who is white, pinned Floyd to the pavement outside a Minneapolis corner store for more than nine minutes as the Black man pleaded, “I can’t breathe,” and became unresponsive....

Magnuson, who earlier this year presided over the federal trial and convictions of three other officers at the scene, blamed Chauvin alone for what happened.... “You absolutely destroyed the lives of three young officers by taking command of the scene,” Magnuson said.

Chauvin’s plea agreement called for a sentence of 20 to 25 years to be served concurrent with a 22 1/2-year sentence for his state conviction of murder and manslaughter charges. Because of differences in parole eligibility in the state and federal systems, it means that Chauvin will serve slightly more time behind bars than he would have on the state sentence alone.

He would be eligible for parole after 15 years on the state sentence, but must serve almost 18 years of his federal time before he could be released.  He will also do his time in the federal system, where he may be safer and may be held under fewer restrictions than in the state system....

Chauvin attorney Eric Nelson had asked for 20 years, arguing that Chauvin was remorseful and would make that clear to the court.  But Chauvin, in brief remarks, made no direct apology or expression of remorse to Floyd’s family. Instead, he told the family that he wishes Floyd’s children “all the best in their life.”...

Prosecutor LeeAnn Bell asked Magnuson to give Chauvin the full 25 years possible in the plea deal, highlighting the “special responsibility” that he had as a police officer to care for the people in his custody....

Floyd’s brother Philonise also asked for the maximum possible sentence, telling Magnuson the Floyd family had “been given a life sentence.” He said afterward that he was upset that Chauvin didn’t get more time behind bars.

Chauvin’s mother, Carolyn Pawlenty, told Magnuson that her son didn’t go to work intending to kill someone. “Many things have been written about him that are totally wrong such as he’s a racist, which he isn’t, that he has no heart,” she said. “I believe it is God’s will for all of us to forgive.”

Chauvin’s guilty plea included an admission that he willfully deprived Floyd of his right to be free from unreasonable seizure, including unreasonable force by a police officer.  It also included a count for violating the rights of a Black 14-year-old whom he restrained in an unrelated case in 2017.  John Pope, now 18, told Magnuson that Chauvin “didn’t care about the outcome” of that restraint.  “By the grace of God I lived to see another day,” Pope said. “It will continue to be a part of me for the rest of my life.”

A few prior related posts:

July 7, 2022 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

REPOSTING: Call for commentary for Federal Sentencing Reporter issue to provide "Advice for a new U.S. Sentencing Commission"

Because I care so much about the topic and because so much can get quickly forgotten this time of year, I am eager to keep reminding everyone here about this call for papers from the Federal Sentencing Reporter:

Seeking Commentaries for Federal Sentencing Reporter's October Issue to provide “Advice for a new U.S. Sentencing Commission”

Last month, President Joseph Biden announced seven nominees for the U.S. Sentencing Commission, and in early June the Senate Judiciary Committee held a confirmation hearing for this full slate of nominees.  The Commission has lacked a quorum since 2019, which has prevented the agency from amending the US Sentencing Guidelines in any way. President Biden’s nominations, if the confirmation process continues to move forward this summer, should allow an all-new Commission to get to work on federal sentencing reform matters big and small.  The editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share “Advice for a new U.S. Sentencing Commission,” for publication in the October 2022 FSR issue.

FSR commentaries for this issue could tackle big structural issues (such as how the Commission might review and reassess the entire guidelines system), smaller statutory issues (such as how to respond to reforms Congress enacted in the FIRST STEP Act), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes advice from all perspectives, including lessons the Commission could learn from the states and other countries.  Everyone with an informed interest in federal sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with light use of citations in the form of endnotes.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).

Priority will be given to drafts submitted by July 25, 2022, and later submissions will be considered as space permits. Submissions should be sent electronically to berman.43 @ osu.edu with a clear indication of the author and the author’s professional affiliation.

July 7, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Politico provides new review of "Where Jan. 6 prosecutions stand, 18 months after the attack"

In this post last month, I noted the AP's interesting accounting of all the federal sentences given to January 6 rioters so far.  Now, to mark the 1.5 year anniversary of the riot, Politico has this lengthy review of all where Jan 6 matters stand.  I recommend the full piece, and here is how it starts and some of its sentencing discussion:

Eighteen months since a pro-Trump mob ransacked the Capitol and disrupted the peaceful transition of presidential power, prosecutors are closing in on another milestone: 900 arrests.

According to the latest Justice Department figures, more than 855 members of that crowd are facing charges that range from trespassing on restricted grounds to seditious conspiracy.  Prosecutors estimate that more than 2,000 people actually entered the Capitol unlawfully that day, which means hundreds more arrests are likely in the months to come.

For a year and a half, the justice system has been slowly grinding through those cases, which have taken on increasing complexity as the House Jan. 6 select committee reveals new details about then-President Donald Trump’s own role in fomenting the events of that day.

So far, 325 defendants have pleaded guilty to crimes stemming from the breach of the Capitol, the vast majority to misdemeanor crimes.  But the most crucial tests of the Justice Department’s work are still to come....

About 200 defendants have seen their cases all the way through from arrest to sentencing, with the vast majority pleading guilty to misdemeanor crimes.  As a result, sentences have skewed toward probation and home confinement, rather than significant terms of incarceration.  That’s likely to change as some of those facing more serious charges go to trial or plead guilty themselves.

In the growing number of felony plea deals and jury convictions, defendants have received months and even years of jail time.  But sentences have varied widely, in part because of the 22 different U.S. District Court judges handling the Jan. 6 cases.  The harshest sentence so far has gone to Robert Palmer, who received a 63-month jail term after pleading guilty to multiple assaults on police officers guarding the Capitol’s lower West Terrace tunnel.

Some of many prior related posts:

July 7, 2022 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

Tuesday, July 05, 2022

US Sentencing Commission produces another great updated set of "Quick Facts" publications

Long-time readers have long heard me praise the US Sentencing Commission for producing a steady stream of insightful little data documents in the form of its "Quick Facts" publications (which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format").  After finalizing its fiscal year data, the USSC typically provides updated Quick Facts, and here are some of its newest ones:

Sentencing Issues

Drugs

Firearms

Sex Offenses

Offender Groups

July 5, 2022 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (1)

Tuesday, June 28, 2022

Ghislaine Maxwell given 20-year federal sentence for sex trafficking for Jeffrey Epstein

In this post over the weekend, I asked in anticipation of today's high-profile sentencing, "what federal sentence for convicted sex trafficker Ghislaine Maxwell?."  Commentor tmm nailed the outcome, as reported here by the AP:

Ghislaine Maxwell, the jet-setting socialite who once consorted with royals, presidents and billionaires, was sentenced to 20 years in prison Tuesday for helping the financier Jeffrey Epstein sexually abuse underage girls.  The stiff sentence was the punctuation mark on a trial that explored the sordid rituals of a predator power couple who courted the rich and famous as they lured vulnerable girls as young as 14, and then exploited them.

Prosecutors said Epstein, who killed himself in 2019 while awaiting trial, sexually abused children hundreds of times over more than a decade, and couldn’t have done so without the help of Maxwell, his longtime companion and onetime girlfriend who they said sometimes also participated in the abuse.  In December, a jury convicted Maxwell of sex trafficking, transporting a minor to participate in illegal sex acts and two conspiracy charges.

U.S. District Judge Alison J. Nathan, who also imposed a $750,000 fine, said “a very significant sentence is necessary” and that she wanted to send an “unmistakable message” that these kinds of crimes would be punished.  Prosecutors had asked the judge to give her 30 to 55 years in prison, while the 60-year-old Maxwell’s defense sought a lenient sentence of just five years....

When she had a chance to speak, Maxwell said she empathized with the survivors and that it was her “greatest regret of my life that I ever met Jeffrey Epstein.” Maxwell called him “a manipulative, cunning and controlling man who lived a profoundly compartmentalized life,” echoing her defense attorneys’ assertions that Epstein was the true mastermind. Maxwell, who denies abusing anyone, said she hoped that her conviction and her “unusual incarceration” bring some “measure of peace and finality.”

Nathan refused to let Maxwell escape culpability, making clear that Maxwell was being punished for her own actions, not Epstein’s. She called the crimes “heinous and predatory” and said Maxwell as a sophisticated adult woman provided the veneer of safety as she “normalized” sexual abuse through her involvement, encouragement and instruction....

Assistant U.S. Attorney Alison Moe recounted how Maxwell subjected girls to “horrifying nightmares” by taking them to Epstein. “They were partners in crime together and they molested these kids together,” she said, calling Maxwell “a person who was indifferent to the suffering of other human beings.”

Epstein and Maxwell’s associations with some of the world’s most famous people were not a prominent part of the trial, but mentions of friends like Bill Clinton, Donald Trump and Britain’s Prince Andrew showed how the pair exploited their connections to impress their prey.

Over the past 17 years, scores of women have accused Epstein of abuse them, with many describing Maxwell as the madam who recruited them.  The trial, though, revolved around allegations from only a handful of those women.  Four testified that they were abused as teens in the 1990s and early 2000s at Epstein’s mansions in Florida, New York, New Mexico and the Virgin Islands....

At least eight women submitted letters to the judge, describing the sexual abuse they said they endured for having met Maxwell and Epstein.  Six of Maxwell’s seven living siblings wrote to plead for leniency.  Maxwell’s fellow inmate also submitted a letter describing how Maxwell has helped to educate other inmates over the last two years.  Anne Holve and Philip Maxwell, her eldest siblings, wrote that her relationship with Epstein began soon after the 1991 death of their father, the British newspaper magnate Robert Maxwell.

Based on the sentencing filings noted in this prior post, I believe the Government argued the applicable federal sentencing guideline range was 360 month-life, but this CBS article indicates that Judge Nathan concluded the proper guideline range was 188-235 months.  So, by adopting a more lenient guideline calculation, Judge Nathan technically gave Maxwell and above-guideline sentence.

Prior related posts:

June 28, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (2)

Sunday, June 26, 2022

You be the judge: what federal sentence for convicted sex trafficker Ghislaine Maxwell?

A high-profile sentencing is scheduled for NYC federal court this coming week.  This CNN article from last last, reporting on prosecutors' sentencing filing, provides a partial preview:

Federal prosecutors asked a judge in a court filing Wednesday to sentence Ghislaine Maxwell to 30 to 55 years in prison for sex trafficking a minor and other charges related to a sprawling conspiracy to abuse young girls with the wealthy financier Jeffrey Epstein.

"Maxwell was an adult who made her own choices. She made the choice to sexually exploit numerous underage girls. She made the choice to conspire with Epstein for years, working as partners in crime and causing devastating harm to vulnerable victims," prosecutors wrote in the sentencing memo. "She should be held accountable for her disturbing role in an extensive child exploitation scheme."

Last week, Maxwell's lawyers asked a judge to sentence her to between 4.25 and 5.25 years in prison, saying her difficult childhood made her vulnerable to Epstein and that she shouldn't face a harsh sentence because of his actions. "But this Court cannot sentence Ms. Maxwell as if she were a proxy for Epstein simply because Epstein is no longer here," her attorneys wrote in their sentencing recommendation....

Epstein, who pleaded guilty in 2008 to state prostitution charges, was indicted on federal sex trafficking charges in July 2019 but died by suicide in prison a month later. Maxwell, his confidante and former girlfriend, was arrested a year afterward and has been held in jail since. In the sentencing memo, the prosecution wrote that the defense's argument was "absurd and offensive."

"The lenient sentence the defendant seeks would send the message that there is one system of laws for the rich and powerful, and another set for everyone else," prosecutors wrote.... 

Maxwell, 60, was found guilty of five federal charges in December: sex trafficking of a minor, transporting a minor with the intent to engage in criminal sexual activity and three related counts of conspiracy.  However, she will only be sentenced on three counts after the judge presiding over her case agreed that two of the conspiracy counts she faced were repetitive.

The probation department recommended a 20-year sentence, below the sentencing guidelines. 

At her trial late last year, prosecutors argued Maxwell and Epstein conspired to set up a scheme to lure young girls into sexual relationships with Epstein from 1994 to 2004 in New York, Florida, New Mexico and the US Virgin Islands. Four women testified during the trial that Epstein abused them and that Maxwell facilitated the abuse and sometimes participated in it as well.

Her defense, meanwhile, said she was a "scapegoat" for Epstein's actions and attacked the memories and motivations of the women who said they were sexually abused.

The federal prosecutors' sentencing filing, which is available here, contends that "the applicable sentencing range is 360 months to life imprisonment [but] the statutory maximum penalty is 660 months’ imprisonment, [so] the Guidelines range becomes 360 to 660 months’ imprisonment."  But the defense sentencing memorandum, which is available here, requests "that the Court grant Ms. Maxwell a significant variance below the advisory Sentencing Guidelines range of 292-365 months and below the 240-month sentence recommended by the Probation Department."

But, as of this writing on the morning of June 26, it now seem there is a chance the sentencing will not go forward this week.  This Reuters article explains:

Ghislaine Maxwell has been put on suicide watch at a Brooklyn jail, and may seek to delay her Tuesday sentencing for aiding Jeffrey Epstein's sexual abuse of underage girls, her lawyer said on Saturday night.  In a letter to the judge overseeing Maxwell's case, Maxwell's lawyer, Bobbi Sternheim, said her client is "unable to properly prepare, for sentencing," after officials at the Metropolitan Detention Center on Friday declared the suicide watch and abruptly moved Maxwell to solitary confinement.

Sternheim said Maxwell was given a "suicide smock," and her clothing, toothpaste, soap and legal papers were taken away. The lawyer also said Maxwell "is not suicidal," a conclusion she said a psychologist who evaluated the 60-year-old British socialite on Saturday morning also reached.

"If Ms. Maxwell remains on suicide watch, is prohibited from reviewing legal materials prior to sentencing, becomes sleep deprived, and is denied sufficient time to meet with and confer with counsel, we will be formally moving on Monday for an adjournment," Sternheim wrote.

Prior related post:

June 26, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (1)

Wednesday, June 22, 2022

Call for commentary for Federal Sentencing Reporter issue to provide "Advice for a new U.S. Sentencing Commission"

I am pleased to be able to spotlight here a call for papers from the Federal Sentencing Reporter:

Seeking Commentaries for Federal Sentencing Reporter's October Issue to provide “Advice for a new U.S. Sentencing Commission”

Last month, President Joseph Biden announced seven nominees for the U.S. Sentencing Commission, and in early June the Senate Judiciary Committee held a confirmation hearing for this full slate of nominees.  The Commission has lacked a quorum since 2019, which has prevented the agency from amending the US Sentencing Guidelines in any way. President Biden’s nominations, if the confirmation process continues to move forward this summer, should allow an all-new Commission to get to work on federal sentencing reform matters big and small.  The editors of the Federal Sentencing Reporter are eager to invite judges, lawyers, other sentencing practitioners, legal academics, and sentencing researchers, to share “Advice for a new U.S. Sentencing Commission,” for publication in the October 2022 FSR issue.

FSR commentaries for this issue could tackle big structural issues (such as how the Commission might review and reassess the entire guidelines system), smaller statutory issues (such as how to respond to reforms Congress enacted in the FIRST STEP Act), or any other topic of interest or concern to modern federal sentencing policy and practice.  FSR welcomes advice from all perspectives, including lessons the Commission could learn from the states and other countries.  Everyone with an informed interest in federal sentencing law and practice is encouraged to submit a commentary.

FSR articles are typically brief — 2000 to 5000 words, though they can run longer — with light use of citations in the form of endnotes.  The pieces are designed to be read by busy stakeholders, including lawyers, judges, scholars, and legislators (as well as, of course, members and staff of the US Sentencing Commission).

Priority will be given to drafts submitted by July 25, 2022, and later submissions will be considered as space permits. Submissions should be sent electronically to berman.43 @ osu.edu with a clear indication of the author and the author’s professional affiliation.

June 22, 2022 in Federal Sentencing Guidelines, Recommended reading, Who Sentences | Permalink | Comments (2)

Thursday, June 09, 2022

Notable coverage of supposed "new breed" of prison consultants

I have been following the federal criminal justice system for the better part of 30 years, and throughout there have always been various types of experts who seek to help defendants with sentence mitigation and preparation for prison (especially in the white-collar universe where greater resources are available to pay for these kinds of services).  Still, every now and again, the press seems eager to make much of the phenomenon of so-called "prison consultants" as, for example, in a 2020 Town & Country  piece, "Inside the World of Prison Consultants Who Prepare White Collar Criminals to Do Time." 

The New York Times has long been keen on the prison consultant beat as evidenced by older articles like a 2009 piece headlined "Consultants Are Providing High-Profile Inmates a Game Plan for Coping" and a 2012 piece headlined "Making Crime Pay."  This week, the Gray Lady has this very long piece in this genre appearing in its magazine under this full headline "Want to Do Less Time? A Prison Consultant Might Be Able to Help. For a price, a new breed of fixer is teaching convicts how to reduce their sentence, get placed in a better facility — and make the most of their months behind bars."  Though I am not sure why prison consultants are now described as a "new breed of fixer," I am sure this lengthy article is still worth a full read.  Here are excerpts: 

After a prominent felon is sentenced, a spate of stories often appear about these backstage fixers for the wealthy, consultants who can help get a client into prisons that one might prefer — say, a prison that has superior schooling or CrossFit-level gyms or lenient furlough policies or better-paying jobs or other refined specialties.  The federal prison in Otisville, N.Y., for example, is also known as “federal Jewish heaven” because of its good kosher food (decent gefilte fish, they say, and the rugelach’s not bad).  When those Varsity Blues parents were busted for paying backdoor operatives to engineer their kids’ college admissions, it was also reported that many hired prison consultants to game out the aftermath.

[Justin] Paperny’s business is a natural market outgrowth of a continuing and profound shift in America’s judicial system.  Almost everyone facing charges is forced to plead guilty (or face an angry prosecutor who will take you to trial).  In 2021, 98.3 percent of federal cases ended up as plea bargains.  It’s arguable that in our era of procedural dramas and endless “Law & Order” reruns, speedy and public trials are more common on television than in real-life courthouses.  What people like [Hugo] Mejia have to deal with as they await sentencing is a lot of logistics.

The idea of a prison consultant might conjure an image of an insider broker or fixer, but they’re really more like an SAT tutor — someone who understands test logic and the nuances of unwritten rules. Yet prison consulting also involves dealing with a desolate human being who has lost almost everything — friends, family, money, reputation — and done it in such a way that no one gives a damn.  So they’re also a paid-for best friend, plying their clients with Tony Robbins-style motivational insights, occasionally mixed with powerful sessions about the nature of guilt and shame....

On television, the journey to prison is nearly instantaneous: a jump cut to a slamming cell door. But in the real world, it’s a set of steps, routine bureaucratic actions that involve interviews, numerous forms to complete and dates with officials. A lawyer is your legal guide to staying out of prison, but once that becomes inevitable, a prison consultant is there to chaperone you through the bureaucracies that will eventually land you in your new home, easing your entry into incarceration — and sometimes even returning you to the outside, utterly changed....

One of the first things Paperny advises a client like Mejia to do is to stop [minimizing the offense], especially before sentencing.  You pleaded guilty already.  You did it.  Own it — because the vamping will almost certainly annoy any judge or civil servant who hears it, and you’ll wind up with a much longer sentence.  That’s arguably the most crucial piece of advice that Paperny provides to his clients, for the simple reason that when you’re going to prison, you have to formally tell your story to all kinds of people.

The storytelling officially begins a few weeks after a guilty plea (or a conviction by trial) in a sit-down interview with a law-enforcement officer whose specialty is writing up a pre-sentencing report, which will be given to the presiding judge.  The descriptions of the crime come largely from the plea agreement, which is, naturally, centered on the proposition that you are a heinous criminal and a moral fugitive.  Think of a Wikipedia biography that tells the story of the worst moment of your life, with everything else about you salted away in footnotes.  This is what the sentencing judge will read before deciding precisely how long you will be confined — and it’s a story that will follow you throughout your stay with the state.

“They call the pre-sentencing report the Bible in prison, because it is one of the first things a case manager or counselor will rely upon,” Paperny said. “It will influence early release, your half-house time, your bunk, your job and so on.”

June 9, 2022 in Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (2)

Wednesday, June 08, 2022

Senate conducts hearing for nominees for US Sentencing Commission

Four weeks ago, as discussed here, Prez Biden finally made nominations to the US Sentencing Commission.  Due to a lack of commissioners, the US Sentencing Commission has lacked a quorum needed to fully function for 3.5 years, and the USSC has not had complete set of commissioners firmly in place for nearly decade.  But, now moving relatively swiftly, the US Senate Judiciary Committee today held a confirmation hearing for Prez Biden's seven USSC nominees.

Here is a link to the hearing, which runs about two hours and has a number of interesting elements.  Hard-core federal sentencing fans will likely consider the full hearing worth watching.  For a quick review, FAMM's Shanna Rifkin provided this live tweeting of the hearing, which captures some of the highlights.  And here is a round-up of some press coverage:

From Bloomberg Law, "Sentencing Commission Vetting Echoes GOP Grilling of Jackson"

From Law360, "Senate Panel Considers Long-Awaited Sentencing Noms"

From Reuters, "Biden's sentencing panel noms vow to implement criminal justice reform law"

There was some sharp questioning of a few of the nominees, especially from some GOP Senators, and Senator Josh Hawley seemed to indicate that he would not support at least one of the nominees.  But the overall tenor of the hearing suggested that this slate of nominees had considerable support from the Committee and is on a path to eventual confirmation.

Though this hearing means we are one step closer to having a functional US Sentencing Commission, it is still unclear exactly when there will be a committee vote and then a full Senate vote on these nominees.  I am hopeful these votes might take place this summer, but I should know better than to make any predictions about the pace of work by Congress.

June 8, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Tuesday, June 07, 2022

Notable cert petition (and amicus) urges SCOTUS to take up drug quantity calculations review standards

Long-time readers know that I have long complained about how the Supreme Court sets its criminal docket and repeatedly fails to take up many consequential sentencing issues (except in capital and ACCA cases).  But hope springs eternal, and issues needing SCOTUS attention are never ending.  To that end, I want to flag a recent cert petition, which has new amicus support, and is scheduled to be considered by the Justices this week.  The case is Tucker v. United States, No. 21-7769, coming from the DC Circuit, and here is an excerpt from the cert petition:   

A fourth of the federal cases reported to the United States Sentencing Commission are narcotics prosecutions.  The issue of drug quantity frequently heavily influences the element of Relevant Conduct which factors into those offenders’ Sentencing Guidelines’ Base Offense Levels.

After being convicted by a jury for a federal narcotics conspiracy charge, Petitioner unsuccessfully contested the district judge’s approach to determining the quantity of drugs for which he was being held accountable.  On appeal, Petitioner contended that the trial judge’s methodology should be reviewed de novo.  The Circuit Court reviewed for clear error, which is the standard followed in three courts of appeals.  Conversely, five Circuits apply a de novo standard of review; the process employed by two other Circuits is equally rigorous.  This distinction can make a difference: courts using the more vigorous standard of review have reversed sentences flowing from methodologies that depended more on conjecture than recognized criteria....

Deciding the standard of appellate review is a matter for this Court.  Thus understood, the question presented is whether the Court should resolve the circuit conflict by requiring de novo review for contested methodologies used to determine Base Offense Levels in narcotics prosecutions.

This amicus brief filed in support of the petition frames the issue this way:

Whether the methodology used by a district court to determine drug quantity for purposes of sentencing for drug trafficking offenses should be reviewed de novo, under a heightened standard, or only for clear error, the standard followed by D.C. Circuit below.

Given that nearly 20,000 federal drug cases are sentenced every year — that's roughly 400 each and every week — it is hard to think of a federal sentencing issue much more consequential than the calculation and review of drug quantities.  Fingers crossed this case might capture the attention of at least four Justices.

Just a very few of many prior related posts newer and older:

June 7, 2022 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, June 06, 2022

"'How Much Time Am I Looking At?': Plea Bargains, Harsh Punishments, and Low Trial Rates in Southwest Border Districts"

The title of this post is the title of this recent article authored by Walter Gonçalves and available via SSRN. Here is its abstract:

Scholarship on the American trial penalty, vast and diverse, analyzes it in connection with plea bargaining’s dominance, its growth starting in the last third of the nineteenth century, and present-day racial disparities at sentencing.  The overcriminalization and quick processing of people of color in southwest border districts cannot be understood without an analysis of how trial sanctions impact illegal entry and drug trafficking in these busy jurisdictions.  Professor Ronald Wright wrote about the role of prosecutorial power and plea bargaining in the federal system, but he passed over how and why immigration crimes became widespread.  Any discussion of prosecutors and plea bargaining requires an understanding of how they manage illegal entrants and drug couriers — the most prevalent defendants in federal court.

This Article analyzes the reasons for increasing plea rates and trial penalties in the southwest and how they helped enable the proliferation of fast-track programs.  The plea-bargaining machine used racial stereotypes and stigmatizations of Latinx and African American populations to justify few trials and process as many migrants and drug couriers as possible.  This paper provides practical advice for criminal defense lawyers when representing clients at the plea and sentencing stage of a case.  It also unites a discussion of implicit bias to explain why judges disfavor racial minorities.

June 6, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Thursday, June 02, 2022

Hoping it is not yet time to give up on passage of the EQUAL Act

When the US House of Representatives voted overwhelmingly in Sept 2021, by a tally of 361-66, to pass the EQUAL Act to equalize powder and crack cocaine sentences, I thought the long ugly stain of the crack/powder disparity might be finally about to come to an end.  In this post, I wondered "After an overwhelming majority of GOP House delegation voted for EQUAL Act, can the Senate move quickly to finally right a 35-year wrong?."  Nearly nine months later, it is now obvious that the Senate was not able to move quickly on this issue.  But, I was still optimistic in March 2022 upon news that a full 10 GOP Senators were now signed on as co-sponsors of the EQUAL Act, and so I asked here "Is Congress finally on the verge of equalizing crack and powder cocaine sentences?."

But April brought showers dousing some of my hopefulness in the form of a group of GOP Senators introducing a competing crack/powder sentencing reform bill tougher than EQUAL Act and a press report that Democrats were fearful of potential floor votes around possible EQUAL Act amendments.  And yesterday, I saw that FAMM President Kevin Ring has this new commentary, headlined "The Senate’s Unwillingness to Pass the EQUAL Act Highlights Its Dysfunction," while almost reads like a boxer's corner man throwing in the towel.  Here are excerpts:

When Lavonda Bonds, Yvonne Mosley, and Sagan Soto-Stanton saw the U.S. House overwhelmingly pass a bill last September to eliminate the federal sentencing disparity between crack and powder cocaine, they were excited and hopeful.  Their loved ones, who’ve each spent decades languishing in federal prison, could finally come home if the Senate would simply follow suit and pass this noncontroversial reform, known as the EQUAL Act.

Eight months later, these three women — and thousands of other families — are still waiting for the Senate to act.  They want to know what the holdup is.  They think I might know because I have been working in and around Congress for the past 30 years, first as a Capitol Hill staffer, then as a lobbyist, and for the past 13 years, as a D.C.-based advocate for families with loved ones in prison.

Unfortunately, I have to tell them all the same thing: The Senate is broken.  And the EQUAL Act is perhaps the best and most infuriating example of just how broken the Senate has become — it can’t even pass a bill with broad, bipartisan support and fix a 36-year-old mistake....

Congress, which voted unanimously in 2010 to reduce the disparity to 18:1, looked poised to finally eliminate it this year.  A diverse coalition of groups from across the ideological spectrum, including organizations representing police and prosecutors, civil rights, and civil liberties, joined together to support the EQUAL Act to end the unwarranted disparity.

The U.S. House approved the EQUAL Act last September by a vote of 361–66. House Republican Leader Kevin McCarthy (R-Calif.), conservative Reps. Jim Jordan (R-Ohio) and Louie Gohmert (R-Tex.), and nearly 70 percent of the Republican caucus joined every House Democrat in a powerful display of bipartisanship on a matter of equal justice.

As attention turned to the Senate, the bill’s supporters secured eleven Republican cosponsors (and more private commitments) to demonstrate that the EQUAL Act was bipartisan, popular, and would not fall victim to the filibuster, the Senate rule requiring 60 votes to cut off debate.  There’s no threat of filibuster preventing a vote for the EQUAL act, which could change the lives of thousands of suffering families.

So what’s the problem?  Senators may have to vote on amendments that get offered to the bill and they are scared.  They fear that members in the small minority who oppose the bill will offer amendments that sound good, yet are bad policy, known as “poison pills.”

This fear has always existed, especially in election years, but in recent years it has grown to the point of creating paralysis.  In the past, supporters of important reforms would stand together in opposition to obviously ill-intentioned amendments.  But senators today obsess over voting against poison pills they think will hurt their re-election chances, and leaders of the Senate’s majority party fear these votes could lose their side’s control of the chamber.  The Democrats control the Senate now, but this has been the practice of both parties in recent years.

The result is an unwillingness to move even popular reforms like the EQUAL Act. Filibuster or not, the Senate is broken.  And if it doesn’t get fixed soon, the families of Lavonda, Yvonne, Sagan, and thousands of others will remain separated by prison bars for no reason.

I do not think this commentary signals that the EQUAL Act cannot still get passed, but it reinforces my fear that the climb is far more uphill than it seemingly should be. One might especially recall that the FIRST STEP Act got to Prez Trump's desk during the lame-duck days after the 2018 election, so maybe that history foreshadows a 2022 path for the EQUAL Act.  But, whatever might come of this particular bill, I continue to be troubled to hear that the Senate cannot advance good policy because it seems a few of its members may fail to understand how to manage politics.  Sigh.

A few of many prior posts on the EQUAL Act:

June 2, 2022 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Offense Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Wednesday, May 25, 2022

Former reality star Josh Duggar sentencing to just over 12.5 years in federal prison for child pornography offense

In this post last week, I spotlighted the sentencing submission of the parties in a high-profile federal sentencing and asked "what federal sentence for former reality star Josh Duggar after child pornography convictions?".  I noted that the prosecution was asking for the statutory max of 20 years (and they said the guideline range was 30 to life), while Duggar asked for a sentence of five years.  The post generated a lot of thoughtful comments, and atomicfrog predicted "a sentence in the 10-12 year range."  That was pretty close, as this new BuzzFeed News piece explains in its headline: "Josh Duggar Has Been Sentenced To 12.5 Years In Prison Over Child Sexual Abuse Materials."

Though not discussed at length in the BuzzFeed piece, I surmise from this People article that the sentencing judge here may not have adopted all of the guideline enhancements pursued by the Government.  Here is a snippet:

Prosecutors had asked that he serve the maximum sentence of 20 years in prison, while Duggar’s defense team had asked for five. “Duggar has a deep-seated, pervasive, and violent sexual interest in children,” Assistant US Attorney Dustin Roberts wrote in a sentencing memo.

Both Duggar's wife, Anna, and father, Jim Bob, were in court in Fayetteville on Wednesday for the sentencing.

On Tuesday, District Judge Timothy Brooks issued a 29-page opinion rejecting Duggar's plea for a new trial. "There is no merit to Mr. Duggar’s argument in favor of acquittal," the judge wrote....

After a lengthy hearing Wednesday in which he heard a number of objections from the defense, the judge sentenced Duggar to 151 months in prison.

You be the judge: what federal sentence for former reality star Josh Duggar after child pornography convictions?

Prior related posts:

May 25, 2022 in Celebrity sentencings, Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (7)

Tuesday, May 24, 2022

With Senate leader now pushing for EQUAL Act, can crack sentencing reform finally get to finish line?

The question in the title of this post is prompted by this New York Daily News article headlined "Schumer calls for end to crack cocaine sentencing disparity: ‘Cocaine is cocaine’."  Here are excerpts:

Senate Majority Leader Chuck Schumer on Monday called on lawmakers to end a sentencing disparity between crack and powder cocaine that has had a disproportionate effect on Black Americans. “We have a moment to balance the scales of justice,” the New York Democrat said at a news conference outside the Thurgood Marshall U.S. Courthouse in lower Manhattan. “It’s common sense: Cocaine is cocaine, and the sentencing should be equal.”

In September, the House overwhelmingly passed legislation to end a sentencing formula that uses an 18-to-1 ratio in treating equal amounts of crack and powder cocaine. The bipartisan vote was 361 to 66. Democrats and Republicans embraced the chance to correct what activists, researchers and law enforcement view as a historical wrong. Pricey powder cocaine has long been seen as the province of the wealthy, while crack is cheaper and generally associated with poorer Americans....

But the bill, called the Eliminating a Quantifiably Unjust Application of the Law Act, has not yet landed on the floor of the Senate this spring, with both parties moving cautiously ahead of the pivotal midterm elections in November.

Schumer, who declined to describe a timeline for passage, appeared to be embarking upon a pressure campaign meant to clear space for the legislation’s approval without a fierce fight on the floor. In the Senate, Sens. Rob Portman (R-Ohio) and Cory Booker (D-N.J.) are sponsoring the legislation to end the sentencing disparities. “We’re working together — Sens. Booker, Portman and myself — figuring out the right timeframe and the right way to go,” Schumer told reporters Monday. “We want to get this done as soon as we can.”

Booker’s office said Monday that the legislation has picked up 21 cosponsors, including 11 Republicans, since it was introduced in the Senate in January. Booker said in a statement he was “pleased that Leader Schumer has called for a vote on the bill.” “For decades, our nation’s drug laws have been overly punitive and fraught with racial disparities, but perhaps no law has been as fundamentally flawed as the crack and powder cocaine sentencing disparity,” Booker said in the statement. “I look forward to passing the EQUAL Act as soon as possible.”

Beginning in 1986, mandatory minimum sentences for crack cocaine and powder cocaine crimes were formulated using a staggering 100-to-1 ratio. The Fair Sentencing Act of 2010, signed into law by President Barack Obama, changed the ratio to 18 to 1. “Some of our colleagues would say, ‘Well, I’ll lower it, but I won’t make it equal,’” said Schumer, who at one point held up sweetener packets as props during the news conference. “100 to 1 was horrible, but 18 to 1 was just as horrible, which it is now. 1 to 1 is fair.”

Senator Schumer is wrong to assert current crack sentencing after the Fair Sentencing Act is "just as horrible" as it was under the 100-1 ratio.  It is a bit better, but still not actually fair.  The EQUAL Act finally presents the prospect of getting to the 1-1 sentencing ratio that the US Sentencing Commission urged way back in 1995.  More than a quarter of a century later, I hope Senator Schumer is right about the fact that now is finally, finally "a moment to balance the scales of justice."

A few of many prior posts on the EQUAL Act:

May 24, 2022 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Race, Class, and Gender, Who Sentences | Permalink | Comments (0)

Saturday, May 21, 2022

Register for "Looking Ahead: Learning from Past Commission Leadership"

In this prior post, I noted the great weekly panel series that has been running through the month of May titled "The Role of the U.S. Sentencing Commission in Decarceration: First Step Act and Beyond."  This series has been put together by the Center for Justice and Human Dignity, a nonprofit organization whose mission is explained here in terms of seeking  "to reduce prison incarceration in the United States while improving conditions for those imprisoned and working inside."

This panel series concludes this coming Tuesday, May 24, at 12noon ET with a fourth and final panel titled "Looking Ahead: Learning from Past Commission Leadership." The discussion among former heads of the US Sentencing Commission and judges is especially timely given Prez Biden's nomination of seven new people to the US Sentencing Commission just earlier this month.  Everyone can and should register to attend this session (and review the entire series) here.  The speakers for all the panels have been terrific, and here are the folks participating in this last panel:

I had the distinct pleasure of helping just a bit with this panel, and the opportunity to hear from former Chairs of the US Sentencing Commission should never be missed.

Prior related posts:

May 21, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Tuesday, May 17, 2022

You be the judge: what federal sentence for former reality star Josh Duggar after child pornography convictions?

In this post back in December, I asked "How many years and counting might reality TV star Josh Duggar now get after federal jury convictions on two child pornography charges?," and I speculated that he could be looking at a federal guideline range of a decade or longer.   This month, sentencing memos were submitted ahead of Duggar's scheduled sentencing on May 25, and the start of the Government's 32-page Sentencing Memorandum notes the guideline calculation and the statutory ceiling in this matter, as well at the Government's sentencing recommendation:

U.S. Probation’s Case calculation under the United States Sentencing Guidelines (Guidelines) set out in the final PSR reflects an advisory range of imprisonment of 360 months to life, which will be capped by the offense maximum of 240 months set by statute for Count One in the Indictment....

Based on all the facts of the case, including Duggar’s prior sexual exploitation of multiple minors discussed herein, and in consideration of the extraordinary efforts Duggar took to obtain and view child sexual abuse material (CSAM), the nature of the CSAM he obtained and viewed, his efforts to conceal his criminal conduct, and his refusal to take accountability for or acknowledge any of his criminal conduct, the Government recommends the Court impose a guideline term of imprisonment of 240 months.

Defendant Duggar's Sentencing Memorandum and Motion for Downward Variance, which also runs 32 pages, concludes its introduction with a very different recommendation:

[W]hile he maintains his innocence and intends to exercise his right to an appeal, Duggar accepts that the crime for which he is being sentenced is serious and that this Court must impose a punishment.  But in crafting that punishment, Duggar asks that this Court consider this crime within its proper context and consider the person Duggar really is.  It is against this backdrop that Duggar respectfully requests that this Court sentence him to 60 months’ imprisonment as that is “sufficient, but not greater than necessary.” 18 U.S.C. § 3553(a).  As evidenced by his perfect performance on pretrial bond, no matter what sentence is ultimately imposed, this is a defendant who will never find himself before this, or any other, Court ever again and a defendant who will abide by whatever conditions of supervised release this Court imposes.

This lengthy Law & Crime article, headlined "Federal Prosecutors Urge Judge to Hand Josh Duggar Maximum Punishment for Downloading ‘Depraved’ Child Sexual Abuse Materials," provides some more context for the sentencing advocacy in this celebrity(?) case.

Prior related post:

May 17, 2022 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (14)

Wednesday, May 11, 2022

Prez Biden finally announces a full slate of nominees to the US Sentencing Commission

As I have noted in a number of prior posts (some linked below), due to a lack of Commissioners, the US Sentencing Commission has lacked a quorum needed to fully function for well over three years, and the USSC has not had complete set of commissioners firmly in place for nearly decade.  The USSC staff has completed lots of useful research and reports in the interim; but, with the FIRST STEP Act's passage in December 2018, it has been particularly problematic for the USSC to be non-functional in terms of formal amendments or agendas in recent years.

But today, nearly 16 month into his Administration, President Joe Biden has finally announced a full slate of seven Commissioner nominations to the US Sentencing Commission.  Here is the official announcement, headlined "President Biden Nominates Bipartisan Slate for the United States Sentencing Commission," and the basics about the seven nominees (which by statute have to be bipartisan and include at least three judges):

President Biden is announcing seven experienced and qualified nominees for the U.S. Sentencing Commission, a bipartisan independent agency created during the Reagan Administration.  The Commission was created to reduce sentencing disparities and promote transparency and proportionality in criminal sentencing. 

The Commission has lacked a quorum since 2019, which has prevented it from doing critical business. Today, President Biden is pleased to announce the nominations of these individuals — a bipartisan slate including the first Black chair of the organization — whose confirmations would allow the Commission to conduct its important work. 

Judge Carlton W. Reeves: Nominee for Commissioner and Chair of the United States Sentencing Commission

Judge Carlton W. Reeves has served as a United States District Court Judge for the Southern District of Mississippi since 2010....

Laura Mate: Nominee for Commissioner and Vice Chair of the United States Sentencing Commission

Laura Mate has served as the Director of Sentencing Resource Counsel, a project of the Federal Public and Community Defenders in the Office of the Federal Public Defender for the District of Arizona, since 2021 and from 2010 to 2021 was a member of Sentencing Resource Counsel....

Claire McCusker Murray: Nominee for Commissioner and Vice Chair of the United States Sentencing Commission

Claire McCusker Murray served as the Principal Deputy Associate Attorney General of the United States Department of Justice from 2019 to 2021....

Judge Luis Felipe Restrepo: Nominee for Commissioner and Vice Chair of the United States Sentencing Commission

Judge Luis Felipe Restrepo has served as a United States Court of Appeals Judge for the Third Circuit since 2016....

Judge Claria Horn Boom: Nominee for Commissioner of the United States Sentencing Commission

Judge Claria Horn Boom has served as a United States District Court Judge for the Eastern and Western Districts of Kentucky since 2018....

Judge John Gleeson: Nominee for Commissioner of the United States Sentencing Commission

Judge John Gleeson is a partner at Debevoise and Plimpton LLP in New York, where he has practiced since 2016....

Candice C. Wong: Nominee for Commissioner of the United States Sentencing Commission

Candice C. Wong serves as an Assistant United States Attorney and Chief of the Violence Reduction and Trafficking Offenses Section in the United States Attorney’s Office for the District of Columbia....

Because these selections have surely been made in consultation with Senate leadership, I am reasonably hopeful that hearings and a confirmation of these nominees could proceed swiftly.  (But that may be wishful thinking, as was my thinking that these needed nominees would come a lot sooner.)  There is lots of work ahead for these nominees (and lots of blog posts to follow about them and their likely agenda), but for now I will be content with just a "Huzzah!"

A few of many prior recent related posts:

May 11, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (9)

Friday, April 29, 2022

GOP Senators introduce competing crack/powder sentencing reform bill tougher than EQUAL Act

Regular readers should be aware from my prior postings that Congress seems poised to pass the EQUAL Act to entirely eliminate the crack and powder cocaine sentencing disparity.  This disparity and its racialized impacts have been an ugly part of the federal sentencing landscape for over 35 years (when Congress first created the 100:1 disparity), and the Fair Sentencing Act of 2010 only partially reduced the disparity (down to 18:1).  But after the US House voted overwhelmingly, 361-66, to pass the EQUAL Act to end disparity last year, and after the Senate version had secured 11 GOP sponsors, I was hopeful the powder and crack cocaine disparity could and would finally be ended this year.

But, this press release from Senator Chuck Grassley's office, titled "Senators Introduce Bill To Reduce Crack-Powder Sentencing Disparity, Protect Communities From Criminals Most Likely To Reoffend," now has me concerned that a competing bill might now muck up the works.  Here are the details from the release:

Sens. Chuck Grassley (R-Iowa), Mike Lee (R-Utah), Roger Wicker (R-Miss.) and Lindsey Graham (R-S.C.) today introduced the SMART Cocaine Sentencing Act, which will reduce the sentencing disparity between crack and powder cocaine offenders tried in federal courts. The legislation aims to make sentencing fairer while also preserving the ability of courts to keep those most likely to reoffend off the street.

“I’ve worked on this issue for many years. I cosponsored the 2010 legislation led by Senators Durbin and Sessions to reduce the disparity in sentencing from 100-to-1 to 18-to-1.  It’s high time to do more to address this important issue and make our criminal code more just and fair.  Our legislation will significantly reduce this disparity while ensuring those more likely to reoffend face appropriate penalties.  Powder cocaine is being trafficked across the border in historic volumes, so we also need to take precautions that ensure these traffickers also face justice for spreading poison through our communities,” Grassley said....

This sentencing disparity between crack and powder cocaine offenders has had a disparate impact on communities of color across the country.  Reducing this disparate impact is critical, but must be thoughtfully enacted to prevent likely reoffenders from returning to communities just to violate the law again.

Separate legislation has been introduced in the Senate to completely flatten the differences between sentences for crack cocaine and powder cocaine offenses.  This approach does not account for the differences in recidivism rates associated with the two types of cocaine offenses.  According to a January 2022 analysis from the U.S. Sentencing Commission (USSC), crack cocaine offenders recidivate at the highest rate of any drug type at 60.8 percent, while powder cocaine offenders recidivate at the lowest rate of any drug type at 43.8 percent.  Raising additional public safety concerns, USSC data reveals that crack cocaine offenders were the most likely among all drug offenders to carry deadly weapons during offenses. These statistics show the need for a close look at all available government data before we consider an approach to flatten sentencing for crack and powder cocaine offenses. 

The SMART [Start Making Adjustments and Require Transparency in] Cocaine Sentencing Act will reduce the current crack-to-powder cocaine sentencing disparity from 18:1 to 2.5:1. It reduces the volume required to trigger 5-year mandatory minimum sentences for powder cocaine from 500 grams to 400 grams, and from 5 kilograms to 4 kilograms for 10-year mandatory minimum sentences.  For crack cocaine, the volume triggering a 5-year mandatory sentence is increased from 28 grams to 160 grams; the volume for the 10-year mandatory sentence is lifted from 280 grams to 1,600 grams.

Critically, the SMART Cocaine Sentencing Act also requires an attorney general review and certification process for any retroactive sentencing adjustments. It provides for new federal research from the Drug Enforcement Administration and the Department of Health and Human Services regarding the lethality and addictiveness of these substances as well as what violence is associated with cocaine-related crimes. The legislation also requires a new report from the USSC on crack and powder cocaine offenses, including data on recidivism rates....

Full legislative text of the SMART Cocaine Sentencing Act can be found HERE.  

Kevin Ring has an effective Twitter thread here criticizing various aspects of this proposal, which he calls the "The Grassley Unequal Act."  I hope that this bill does not impede progress on the EQUAL Act, but the fact that the EQUAL Act has not become law already make me concerned about the fate and future or long-overdue efforts to end the crack/cocaine sentencing disparity.

A few of many prior posts on the EQUAL Act:

UPDATE This new New York Times article, headlined "Drug Sentencing Bill Is in Limbo as Midterm Politics Paralyze Congress," details why the EQUAL Act may not get to the finish line in this Congress.  Here are excerpts:

[W]ith control of Congress at stake and Republicans weaponizing a law-and-order message against Democrats in their midterm election campaigns, the fate of the measure is in doubt. Democrats worry that bringing it up would allow Republicans to demand a series of votes that could make them look soft on crime and lax on immigration — risks they are reluctant to take months before they face voters.

Even the measure’s Republican backers concede that bringing it to the floor could lead to an array of difficult votes.  “I assume the topic opens itself pretty wide,” said Senator Roy Blunt, Republican of Missouri, who became the 11th member of his party to sign on to the Equal Act this month, giving its supporters more than the 60 votes needed to overcome procedural obstacles....

Though Mr. Schumer endorsed the legislation in April, he has not laid out a timeline for bringing it to the floor.  Democrats say he is giving backers of the bill a chance to build additional support and find a way to advance the measure without causing a floor fight that could take weeks — time that Democrats do not have if they want to continue to win approval of new judges and take care of other business before the end of the year....

Its supporters say that they recognize the difficulties but believe that it is the single piece of criminal justice legislation with a chance of reaching the president’s desk in the current political environment.  “Of all the criminal justice bills, this is the one that is set up for success right now,” said Inimai Chettiar, the federal director for the Justice Action Network. “It is not going to be easy on the floor, but I think it is doable.”

The problem is that the push comes as top Republicans have made clear that they intend to try to capitalize on public concern about increasing crime in the battle for Senate and House control in November....  Senator Mitch McConnell, the Kentucky Republican and minority leader, this week reprised his criticism of Judge Jackson and attacked Mr. Biden for having issued his first round of pardons and commutations, including for those convicted of drug crimes.  “They never miss an opportunity to send the wrong signal,” he said of Democrats.

Senator Tom Cotton, the Arkansas Republican who led the opposition to the First Step Act, said he was in no mood to let the Equal Act sail through. He has said that if the disparity is to be erased, penalties for powder cocaine should be increased.  “My opposition to the Equal Act will be as strong as my opposition to the First Step Act,” Mr. Cotton said.

The legislation encountered another complication on Thursday, when Senators Charles E. Grassley of Iowa and Mike Lee of Utah, two top Republican supporters of the previous criminal justice overhaul, introduced a competing bill that would reduce — but not eliminate — the sentencing disparity between crack and powder cocaine. They said that research showed that crack traffickers were more likely to return to crime and carry deadly weapons.  “Our legislation will significantly reduce this disparity while ensuring those more likely to reoffend face appropriate penalties,” said Mr. Grassley, the top Republican on the Judiciary Committee.

Sponsors of the Equal Act say they intend to push forward and remain optimistic that they can overcome the difficulties.  “We’ve got an amazing bill, and we’ve got 11 Republicans and people want to get this done,” said Senator Cory Booker, Democrat of New Jersey and the lead sponsor of the legislation. “My hope is that we are going to have a shot to get this done right now.”

With strong advocates of the EQUAL Act now saying that getting this to the floor of the Senate is "doable" or can "have a shot," I cannot help but think it is quite a long shot this Congress.  Sigh.

April 29, 2022 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

Thursday, April 28, 2022

Register for "Alternatives to Incarceration: Reducing Mass Incarceration in Federal Court"

1234 AlternativesIn this post last week, I noted the great weekly panel series for the month of may titled "The Role of the U.S. Sentencing Commission in Decarceration: First Step Act and Beyond."  This series has been put together by the Center for Justice and Human Dignity, a nonprofit organization whose mission is explained here in terms of seeking  "to reduce prison incarceration in the United States while improving conditions for those imprisoned and working inside."

This panel series is to run every Tuesdays at 12noon ET from May 3 through May 24, which means the first panel is scheduled taking place this coming Tuesday, May 3rd.  This first panel is titled " "Alternatives to Incarceration: Reducing Mass Incarceration in Federal Court," which means the speakers will focus on incarceration alternatives in the federal courts and the impact of the US Sentencing Commission in their applicability.  Everyone can and should register to attend next week's session or the entire series here.  The speakers for all the panels are terrific, and here are the folks participating in this first panel:

Judge Dolly M. Gee, United States District Judge of the United States District Court for the Central District of California, CASA Program

Raul Ayala, Deputy Federal Public Defender at Office of the Federal Public Defender, CASA Program

Judge Leo Sorokin, District Court Judge, District of Massachusetts, RISE Program

Chris Dozier, NAPSA Federal Director, Retired Chief U.S. Pretrial Services Officer

And here is a run-down of the future panels:

State Sentencing Commissions Work Toward Decarceration (Tuesday, May 10 12pm ET)

Sentencing Review and Reduction: Open Questions and Next Steps for the Commission (Tuesday, May 17 12pm ET)

Looking Ahead: Learning from Past Commission Leadership (Tuesday, May 24 12pm ET)

Prior related post:

April 28, 2022 in Criminal Sentences Alternatives, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Wednesday, April 27, 2022

"Modern Sentencing Mitigation"

The title of this post is the title of this notable new article authored by John B. Meixner Jr. now available in the Northwestern University Law Review. Here is its abstract:

Sentencing has become the most important part of a criminal case.  Over the past century, criminal trials have given way almost entirely to pleas.  Once a case is charged, it almost always ends up at sentencing.  And notably, judges learn little sentencing-relevant information about the case or the defendant prior to sentencing and have significant discretion in sentencing decisions.  Thus, sentencing is the primary opportunity for the defense to affect the outcome of the case by presenting mitigation: reasons why the nature of the offense or characteristics of the defendant warrant a lower sentence.  It is surprising, then, that relatively little scholarship in criminal law focuses on mitigation at sentencing.  Fundamental questions have not been explored: Do the Sentencing Guidelines — which largely limit the relevance of mitigating evidence — make mitigation unimportant?  Does the extent or type of mitigation offered have any relationship with the sentence imposed?

This Article fills that gap by examining a previously unexplored data set: sentencing memoranda filed by defense attorneys in federal felony cases.  By systematically parsing categories of mitigating evidence and quantitatively coding the evidence, I show that mitigation is a central predictor of sentencing outcomes and that judges approach mitigation in a modern way: rather than adhering to the strict, offense-centric structure that has dominated sentencing since the advent of the Sentencing Guidelines in the 1980s, judges individualize sentences in ways that consider the personal characteristics of each defendant, beyond what the Guidelines anticipate.  And particular types of mitigation, such as science-based arguments about mental and physical health, appear especially persuasive.

The results have significant implications for criminal justice policy: while my data show that mitigation is critical to judges’ sentencing decisions, both the Guidelines and procedural rules minimize mitigation, failing to encourage both defense attorneys and prosecutors to investigate and consider it.  I suggest reforms to make sentencing more equitable, such as requiring the investigation and presentation of mitigation to constitute effective assistance of counsel, easing the barriers to obtaining relevant information on mental and physical health mitigation, and encouraging prosecutors to consider mitigation in charging decisions and sentencing recommendations.

April 27, 2022 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (2)

Tuesday, April 26, 2022

US Sentencing Commission releases "Overview of Federal Criminal Cases, Fiscal Year 2021"

The US Sentencing Commission, despite the persistent lack of a quorum, continues churn out federal sentencing data and helpful reports about that data.  This week brings its regular annual review of federal criminal case data, released under the title "Overview of Federal Criminal Cases, Fiscal Year 2021."  The full 32 page report is available at this link, and the Commission describes and summarizes the report on this webpage in this way:

Summary

The United States Sentencing Commission received information on 57,377 federal criminal cases in which the offender was sentenced in fiscal year 2021.  Among these cases, 57,287 involved an individual offender and 90 involved a corporation or other “organizational” offender.  The Commission also received information on 4,680 cases in which the court resentenced the offender or otherwise modified the sentence that had been previously imposed.  This publication provides an overview of these cases.

Highlights

A review of cases reported to the Commission in fiscal year 2021 reveal the following:

  • The 57,287 individual original cases reported to the Commission in fiscal year 2021 represent a decrease of 7,278 (11.3%) cases from fiscal year 2020, and the lowest number of cases since fiscal year 1999.  The number of offenders sentenced in the federal courts reached a peak in fiscal year 20114 and the number of cases reported in fiscal year 2021 was 33.5 percent below that level.
    • Despite the decrease in overall caseload, sizeable increases were reported in drug trafficking, firearms, sex abuse, child pornography and money laundering cases.
  • Cases involving drugs, immigration, firearms, and fraud, theft, or embezzlement accounted for 83.1% of all cases reported to the Commission.
  • Drug offenses overtook immigration offenses as the most common federal crime in fiscal year 2021, accounting for 31.3% of the total caseload.
    • Drug possession cases continued a five-year downward trend, decreasing 29.6 percent from fiscal year 2020, while the number of drug trafficking cases rose 7.4 percent after reaching a five-year low in 2020.
    • Two-thirds (67.7%) of drug trafficking offenders were convicted of an offense carrying a mandatory minimum penalty.
    • Methamphetamine remained the most prevalent drug type. The 8,494 methamphetamine cases accounted for 48.0 percent of all drug crimes. The proportion of methamphetamine cases has increased steadily since fiscal year 2017, when those cases accounted for 36.6 percent of all drug cases.
    • The number of fentanyl cases increased 45.2 percent from the year before and now constitute the fourth most numerous drug type. In contrast, the proportion of the drug caseload involving heroin and marijuana has steadily decreased over the last five years.

April 26, 2022 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (0)

Sunday, April 24, 2022

US Sentencing Commission releases FY 2022 first quarter sentencing data (with notably low percentage of within-range sentences)

This weekend I noticed that the US Sentencing Commission just published here its latest quarterly data report which sets forth "1st Quarter 2022 Preliminary Cumulative Data (October 1, 2021, through December 31, 2021)."  These new data provide another official accounting of how the COVID pandemic has impacted federal sentencing.  Specifically, as reflected in Figure 2, while the three quarters prior to the pandemic averaged roughly 20,000 federal sentencings per quarter, the three quarters closing out 2020 had only between about 12,000 and 13,000 cases sentenced each quarter.  Calendar year 2021 has seen a rebounding of total cases sentenced, but this latest quarter had just over 15,000 total federal cases sentenced.  Figure 2 also shows that a steep decline in immigration cases continues to primarily accounts for the decrease in overall cases sentenced.

As I have noted before, the other big COVID era trend is a historically large number of below-guideline variances being granted, and this trend has now extended over the last six quarters (as detailed in Figures 3 and 4).  Though one possible explanation for this trend is that more federal judges are imposing lower sentences because of COVID-related concerns, other data suggest that other factors may be in play.  Specifically, Figure 5 shows that the average guideline minimum and average sentences for all cases has been historically high during the COVID era, which is likely a product of the altered case mix with fewer immigration case and perhaps also because federal prosecutors during COVID are more likely to be moving forward with the most aggravated of cases.  With the "Average Guideline Minimum" and also the "Average Sentence" higher in all COVID-era quarters, we may be seeing a higher percentage of below-guideline sentences largely because the guideline benchmarks are particularly high. 

Whatever the full explanation, in this most recent quarter the data show that only 41.6% of all federal sentences are imposed "Within Guideline Range."  I think this number around the lowest it may have ever been.  And yet, this still mean that more than two out of every five cases are imposed within the guidelines while all the others are still sentenced in the shadow of the guidelines.  (Figure 5 shows how closely the sentences actually imposed and guideline ranges track each other.)  So, even with a notably low percentage of within-range sentences, the guidelines still matter a lot (and many of them remain badly broken).  We should all hope that there will be appointments to the US Sentencing Commission soon so that the government agency tasked by Congress with establishing and improving "sentencing policies and practices for the Federal criminal justice system" can finally get back into full swing.

April 24, 2022 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (8)

Wednesday, April 20, 2022

Great panel series to explore "The Role of the U.S. Sentencing Commission in Decarceration: First Step Act and Beyond"

CJHDI keep hoping and hoping that we will be getting nominations from Prez Biden to the US Sentencing Commission just about any day now. Excitingly, even while being kept waiting for long-overdue USSC nominations, I can now look forward to a weekly panel series dedicated to examining thoroughly and thoughtfully what new nominees should be doing.  Specifically, the Center for Justice and Human Dignity (CJHD) is presenting a series of panels on the "Role of the U.S. Sentencing Commission in Decarceration: First Step Act and Beyond," which will run Tuesdays at 12noon ET from May 3 through May 24.

CJHD is a nonprofit organization whose mission is explained here in terms of seeking "to reduce prison incarceration in the United States while improving conditions for those imprisoned and working inside.  We promote values of human dignity and shared safety while keeping in mind the needs of survivors, directly impacted people, and society at large. Alongside diverse partners, we collaborate with judges on alternative sentencing, correctional leaders on the conditions of confinement, and policymakers on early release strategies."

This events page provides this account of this panel series:

While the President considers the U.S. Sentencing Commission appointments, judges and judicial-focused organizations are examining how the agency might better address the myriad ways its guidelines impact mass incarceration.  The nation has an opportunity to reimagine how the Commission might use its authority to further decarceration efforts and address other system disparities through its guidelines and policy statements.

During this symposium, judges, scholars and practitioners will share their thoughts on these topics and reflect on how legislation like the First Step Act has expanded the use of compassionate release and other opportunities for decarceration.

Over the course of four weeks in May, this virtual symposium will offer weekly panels addressing how the U.S. Sentencing Commission can be supportive of federal alternative to incarceration programming, sentencing review mechanisms, promising practices from state sentencing commissions, and changes to the guidelines practitioners and other leaders in the field are interested in seeing once commissioners are appointed.

The Role of the U.S. Sentencing Commission in Decarceration: First Step Act and Beyond. A weekly panel discussion, Tuesdays at 12pm ET, May 3-24, 2022 Click here to register online

I had the pleasure of helping just a bit in planning some of the topics for these panels, as well as the great honor of moderating one part of this important discussion. The speakers involved are really great, and I am looking forward to the whole series (and I sure hope we finally have some Commissions nominees from Prez Biden before the series concludes).

April 20, 2022 in Federal Sentencing Guidelines, Scope of Imprisonment, Who Sentences | Permalink | Comments (5)

Thursday, April 14, 2022

Discouraging update on various sentencing and prison reform bills from inside the Beltway

This new Politico article, "Criminal justice reform faces political buzzsaw as GOP hones its midterm message," provides an unsurprising, but still disappointing, update on the current political realities facing a set of small but important sentencing and prison reform bills pending in Congress. I recommend the whole piece, and here are excerpts:

The Senate delivered former President Donald Trump a bipartisan criminal justice reform deal shortly after the last midterm election.  Staging a sequel for President Joe Biden this year won’t be so easy.

Dick Durbin and Chuck Grassley, the top Democrat and Republican on the Senate Judiciary Committee, are still in talks over finalizing a package that would serve as a more narrow follow-up to the 2018 prison and sentencing reform bill known as the First Step Act.  But both senior senators acknowledge it’s not a glide path forward, particularly given the GOP messaging on rising crime ahead of the 2022 midterms — a focus that was on full display during Ketanji Brown Jackson’s Supreme Court hearings last month.

“That’s dampened the interest in doing what we call the Second Step Act, but we’re still seeing what can be worked out,” Grassley (R-Iowa) said in a brief interview.  He added that if Democrats agree to certain provisions related to law enforcement, “that might make it possible to get something done.”  Durbin (D-Ill.), meanwhile, said he’s concerned about the bill’s prospects, particularly given Republican accusations during Jackson’s confirmation hearings that the justice-in-waiting was soft on crime.  The Judiciary chair ranked criminal justice as high on his list of priorities, though he said legislation addressing crime and law enforcement “may be just as challenging as immigration” — a famously tough area of bipartisan compromise on Capitol Hill.

While both Durbin and Grassley say the sequel legislation is necessary to fully implement and expand on the sentencing updates in the First Step law, the campaign-season politics surrounding criminal justice reform threaten broader GOP support. Though 38 Republican senators backed the 2018 bill, it took Trump’s personal appeals to get many on board. And with Democrats in full control of Washington, Republicans’ emerging midterm message — that liberals are to blame for rising violent crime — could make sentencing changes that much harder.

Sen. John Cornyn (R-Texas), a member of the Judiciary Committee and a close adviser to Minority Leader Mitch McConnell, has yet to review the proposal but predicted a tough road ahead. “Particularly given the spike in violence in the inner cities, it would probably be controversial depending on what the specific proposal was,” Cornyn said. “The timing is not great given the closeness of the midterms and the primaries that still remain to be run.”

The Judiciary panel already passed the foundation for Durbin and Grassley’s potential criminal justice reform package last year. It would give inmates who were sentenced prior to the First Step law’s passage the ability to petition for its reduced sentencing guidelines, applying them retroactively if approved. Another bill included in it would increase eligibility for a program that allows certain elderly prisoners to serve the rest of their sentences at home. There’s also discussion around expanding the scope of a federal carjacking statute, according to a GOP Judiciary Committee aide....

A separate but related criminal justice push in the upper chamber, however, illustrates that reform advocates aren’t exactly pinning their hopes on a broader agreement this year. Supporters of eliminating the long-standing federal sentencing disparity between crack and powder cocaine offenses originally discussed including that provision in the committee’s bigger proposal.

Now advocates for change want the Senate to move a standalone bill on the crack-cocaine disparity, citing its support from 11 Senate Republicans — enough to overcome a filibuster. “They have been working on that package for the better part of a year now, and the [standalone bill] is ready right now,” said Holly Harris, executive director of the Justice Action Network, who is urging the Senate to act shortly after the Easter recess. “My hope is obviously that we can see the [standalone bill] through to fruition here. I mean, it’s literally on the goal line.”... Backers of the legislation eliminating the crack-cocaine disparity, which passed the House overwhelmingly in September, range from conservative Sen. Cynthia Lummis (R-Wyo.) to Senate Majority Leader Chuck Schumer. It’s backed by law enforcement groups, including the Major Cities Chiefs Association and the National District Attorneys Association.

While Schumer hasn’t yet laid out a timeline for when he’d bring the crack-cocaine disparity bill to the floor, members of the Congressional Black Caucus earlier this month wrote to him and Durbin urging the Senate to consider the bill “without delay.” The legislation is a top priority for the caucus, which has already faced setbacks on police reform and voting rights bills. And proponents of the reform are framing it as legislation about “fairness” instead of crime, highlighting support from Reps. Jim Jordan (R-Ohio) and Louie Gohmert (R-Texas).

But Senate aides on both sides of the aisle warn that despite the disparity-closing bill’s bipartisan support, it could still face a challenging path to final passage, including a potentially arduous debate over amendments. Republicans who oppose the bill would almost certainly want to force vulnerable Senate Democrats to take tough amendment votes amid reports of rising violent crime in major cities and the approaching November election. Grassley, who is not a co-sponsor, has also outlined concerns about whether there would be enough Republican support in the Senate to get the legislation over the finish line. While the Judiciary Committee held a hearing on the crack-cocaine disparity bill last year, it has yet to schedule a markup.

Meanwhile, Durbin isn’t giving up on his broader criminal justice reform package. At least not yet. While the Jackson hearings highlighted the “extremes” of GOP opposition, he said he remains hopeful that “there are fair-minded Republicans and Democrats who can form the basis of an agreement.”

Sigh. From the very start of this Congress, many folks have been stressing (see here and here) that the criminal justice arena as presenting opportunities for bipartisan reforms.  And nearly a year ago, as noted here, the Senate Judiciary Committee advanced the COVID-19 Safer Detention Act of 2021, the Prohibiting Punishment of Acquitted Conduct Act of 2021 and the First Step Implementation Act of 2021.  Since then, the House in September 2021 passed, as detailed here, the EQUAL Act by a margin of 361-66 and last month passed, as detailed here, the Prohibiting Punishment of Acquitted Conduct Act of 2021 by a margin of 405-12.  Not sure we can expect more bipartisan agreement than these votes reflect, and so I continue to believe the relatively modest reforms in all of these bills could have and should have been low-hanging fruit for bipartisan legislative achievements in this Congress.  Instead, it now appears that none of these bills may get to the finish line in this Congress. 

I understand fully the challenging politics presented by rising homicide rates and other crime challenges now facing the nation.  But these reforms are all sound tweaks to a federal sentencing and prison system that have rightly garnered strong bipartisan support because they are modest and sensible reforms that are long-overdue and have very little to do with violent offenders.  The apparent failure of this Congress to get any of these bills enacted so far strikes me as much more a story of problematic policy priorities than of modern crime politics.  Sigh.

April 14, 2022 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Monday, April 11, 2022

Considering sentencing echoes of SCOTUS confirmation hearings' sentencing attacks

This lengthy new CNN article, headlined "Ambitious trial judges could be wary after GOP attacks on Judge Jackson's sentencing record," provides an effective review of how last month's SCOTUS spectacle could impact the work of federal sentencing judges.  I recommend the full piece, and here are excerpts (with some commentary added in spots):

The Senate Republicans who led the attacks on Judge Ketanji Brown Jackson's sentencing record say they hoped to send a message to other trial judges who might seek appointments to higher courts.

While some veteran judges see it as a tactic of intimidation, it hits on a longstanding tension between the lifetime tenure granted to judges to in theory shield them from politics and lawmakers' frustration that they're using that discretion to supposedly stretch beyond the instructions they've received from Congress. J

One of the most important consequences of these confirmation hearings is there are district judges across the country who may have ambitions for elevations, who are going to think twice about letting violent criminals go or giving them a slap on the wrist, rather than following the law and imposing serious sentences for those who have committed serious crimes," Sen. Ted Cruz, a Texas Republican, told CNN.

Of course, as I highlighted in this prior post, Judge Jackson was "following the law" in all of her sentencing decisions; and the cases that were the focal point for attacks by GOP Senators did not generally involve "violent criminals," but on computer criminals who downloaded child pornography.  Sigh.  Now, more from the CNN article:

"It is in part meant to intimidate judges," said Ret. Judge Shira Scheindlin, who joined several other retired judges in a letter last month defending Jackson's approach to the child pornography cases that had been singled out by GOP lawmakers. "They are kind of on notice that, if that's their ambition, they better think hard about their sentencing practices," Scheindlin, a Bill Clinton appointee, told CNN. "That's a bad thing."...

"I think it's terrible for public perception for the senators to be suggesting that there are judges around the country who favor child pornography," said Ret. Judge John Martin, who served as a US Attorney under Presidents Jimmy Carter and Ronald Reagan before his appointment by President George H.W. Bush to Manhattan's federal court....

Whether judges will change their approach out of fear they too may someday face the hostility Jackson was subjected to remains to be seen. "People in the legal profession saw it for what it was, and it wasn't a real argument based in fact," said Lisa Cylar Barrett, the director of policy at the NAACP Legal Defense & Educational Fund.

Judges take it seriously, Ret. Clinton-appointed Judge Faith Hochberg told CNN, that their job requires them "to set politics aside and apply the facts and the law to every single case that comes before them, without any overlay of what may be made of the decision politically by someone else who wasn't privy to the facts and the law that the judge was presented."

Still other former judges acknowledged it could have a conscious or subconscious effect. "I don't think judges are going to be too intimidated, but for those few who have the ambition to go to a higher court, they may think twice about leniency," Scheindlin said. "That's unfortunate. They should only be thinking about the defendant in front of them."

April 11, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (3)

Tuesday, April 05, 2022

With SCOTUS nominee now on path to confirmation, time to fret again about the lack of USSC nominees from Prez Biden

As we approach a full 15 months into the Biden Administration, I must yet again return to expressing my frustration that there has not yet been any nominations to the US Sentencing Commission.  As I have noted in a number of prior posts (some linked below), due to a lack of Sentencing Commissioners, the USSC has not been fully functional for the better part of five years, and the USSC has not had complete set of commissioners in place now for nearly a decade.  The USSC staff continues to produce lots of useful research and reports, but the FIRST STEP Act's passage in December 2018 makes it particularly problematic for the USSC to have been completely non-functional for now three+ years since that law's enactment.

Though I harped on this front a lot last year, I did not complain too much recently about the persistent lack of nominees while the Biden Administration was selecting and seeking the confirmation of a replacement for US Supreme Court Justice Breyer.  But, after yesterday's developments (news here), it seem quite clear that Judge Ketanji Brown Jackson will be confirmed to replace Justice Breyer.  So, with this SCOTUS transition now seemingly settled, I will return to full-time fretting about the lack of USSC nominees from Prez Biden.

I have heard buzz from a variety of sources leading me to believe a slate of nominations could be imminent.  These nominations cannot come soon enough, especially given that already three month have passed since Justice Sotomayor, joined by Justice Barrett, issued a statement respecting the denial expressing "hope in the near future the Commission will be able to resume its important function in our criminal justice system."  As all my posts below detail, I have shared this hope, so far still unfulfilled, for quite some time.

One of many reasons sentencing fans should now hope for imminent nominations for the US Sentencing Commission is the inherently uncertain (and political) nature of the confirmation process.  I am hopeful that, because nominations to the USSC have to be bipartisan, there will be Senators from both parties eager to move the eventual nominees through the confirmation process efficiently.  But I am perhaps naive to believe that good government functioning could come before possible political opportunism in this setting (especially during an election year).  Moreover, even if the confirmation process goes quickly and smoothly, the process is still likely to take months, while more than a thousand federal defendants are getting sentenced in federal courts every week. 

A few of many prior related posts:

April 5, 2022 in Criminal justice in the Biden Administration, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Tuesday, March 29, 2022

US House overwhelmingly votes, by a margin of 405-12, for "Prohibiting Punishment of Acquitted Conduct Act of 2021"

I continue to believe that federal sentencing reforms can continue to be an arena for bipartisan achievements in Congress (as we saw with the Fair Sentencing Act during the Obama Administration and with the FIRST STEP Act during the Trump Administration).  Of course, the recent SCOTUS confirmation hearings provided a reminder that some legislators on some criminal justice issues are going to favor partisan attacks over responsible discourse.  Nevertheless, my hope springs eternal and news from Congress last night bolsters this hope. 

Specifically, as detailed in this press release from the office of Congressman Steve Cohen, a bipartisan bill which prohibits the consideration of acquitted conduct in sentencing received overwhelming bipartisan support last night.  Here are excerpts from the press release:

Congressman Steve Cohen (TN-09), Chairman of the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties, today addressed the House of Representatives and urged passage of his bill, the Prohibiting Punishment for Acquitted Conduct Act. The bill later passed the House on a vote of 405 to 12.

Congressmen Cohen and Kelly Armstrong (N.D., at large) introduced the measure last year to end the unjust practice of judges increasing sentences based on conduct for which a defendant has not been convicted.  In his speech on the House floor today, Congressman Cohen said, in part:  “I want to thank Mr. Armstrong for working with me on it. He was a strong proponent of the bill and it is truly bipartisan and bicameral...I’ve got a few pages of speeches here but there’s no reasons to – a long time ago I was told – you make the sale and you sit down. The sale has been made, I believe.”  See those remarks, including part of the debate, here.

When the Judiciary Committee voted to advance the measure in November, Congressman Armstrong made the following statement: “The right of criminal defendants to be judged by a jury of their peers is a foundational principle of the Constitution. The current practice of allowing federal judges to sentence defendants based on conduct for which they were acquitted by a jury is not right and is not fair.”

A similar measure introduced by Senators Dick Durbin (D-Illinois) and Chuck Grassley (R-Iowa) was considered in the Senate Judiciary Committee last June and has been advanced to the full Senate.

I am so very pleased to see this very modest bill, but still very meaningful proposal, move forward and receive such overwhelming support from Representatives in both parties.  I hope this legislation can get a vote in the Senate ASAP.  

A few of many, many, many prior related posts:

March 29, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (9)

Saturday, March 26, 2022

Following up on just some of the sentencing discourse from SCOTUS confirmation hearings

Prior to this past week's Supreme Court confirmation hearing in the Senate Judiciary Committee, I had been pleased to see coverage of the US Sentencing Commission and the ways in which nominee Judge Jackson's service on the USSC might impact her future work if confirmed.  I have also long said that a nominee's experience as a federal district judge (and thus a sentencing judge) should be an asset to work as Justice.  But, while looking forward to a sentencing-related discourse, I ended up generally disappointed by what generally seemed like a failure by all Senators on both sides of the aisle to engage thoughtfully with the deep challenges and profound humanity of sentencing determinations.  

Helpfully, I have now seen a couple of press pieces picking up some of these themes.  Here are links and snippets:

By Dawinder S. Sidhu at The Baltimore Sun, "Senators questioning of Judge Jackson’s sentencing history during Supreme Court confirmation hearings reveals their own failures":

If anything, the senators’ questions highlight Congress’ failures in erecting the sentencing structure that federal judges across the country, including Judge Jackson, operate within. Once the confirmation process is over, the Senate should fix the very system that they criticize judges for following....

Judge Jackson should stand behind her sentencing decisions. So too should Congress step up and fix a system that only it is capable of repairing. It would be a shame for Congress to give attention to that system only when the cameras are rolling and the bright lights of the confirmation process are flashing. The American people, and the principled administration of justice, deserve more.

By Jessica Schulberg at HuffPost, "Ketanji Brown Jackson Was Right To Use Discretion On Sentences. Why Didn’t Democrats Defend It?":

When Republicans falsely accused the Supreme Court nominee of going easy on sex offenders, Democrats could have taken the opportunity to educate the public about the need for sentencing reform. Instead, they sidestepped the issue.

Some prior related posts:

March 26, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (1)

Thursday, March 24, 2022

In praise of the continued sentencing sensibility of the National Review's Andrew McCarthy

Though I have been intrigued by the considerable attention given to Judge Ketanji Brown Jackson's sentencing record even since Senator Josh Hawley's tweets flagged his concerns about about her writings, comments and sentencings in some sex offense cases (background here), I have been quite disappointed by what seemed to me to be a general failure by all of Senators on both sides of the aisle to engage thoughtfully with the deep challenges and profound humanity in any and all sentencing determinations.  District judges often say sentencing is the hardest part of their job, and this is true even in the run-of-the-mill cases when the facts are routine and the applicable statutory law is clear and the applicable guidelines are helpful.  (A few years ago, I gave a talk (written up here) partially titled "Sentencing is So Dang Hard" which details just some reasons I think judge are right to describe sentencing this way.)

Critically, in federal child pornography (CP) cases, the basic facts are rarely routine, the applicable statutory law is rarely clear, and the applicable guidelines are the very opposite of helpful.  In the CP setting, applicable statutory law is quite messy — e.g., what is the real difference between child pornography "possession" and "receipt", how should USSC policy statements be considered here — and the applicable guidelines are widely regarded as badly broken.  Those legal realities mean federal sentencing takes on extra layers of challenge in CP cases.  The challenges become especially profound when difficult and distinctive facts come along, such as in the oft-discussed Hawkins case where, according to this New York Times article, the prosecutor described "very unique circumstances" involving teenage offender and the defense presented an "evaluation by a psychologist asserting that Mr. Hawkins did not 'demonstrate sexual deviation' but was instead driven to watch the pornographic images as 'a way for him to explore his curiosity about homosexual activity and connect with his emotional peers'."

Under difficult circumstances during questions from mostly GOP Senators, Judge Jackson tried hard to explain her sentencing process and goals, and she did highlight some of the unique challenges these cases present in light of problematic guidelines.  But, based on the parts of the hearing I was able to watch, I was generally underwhelmed by the efforts of Judge Jackson's supporters to discuss with her more broadly the deep challenges and profound humanity that all sentencing decision-making involves.  And I heard precious little discussion of the particulars of the Hawkins case or other cases in which defendants present significant mitigating circumstances that find little or no expression is problematic guidelines. 

But, as the title of this post suggest, there is one commentator who has done a great job in this arena this week, and I want to give a particular shout out to the work he has done to consistently and effectively contextualizing these stories.  Specifically, the National Review's Andrew McCarthy has now done three lengthy pieces that are must-reads for everyone following these stories:

"Senator Hawley’s Disingenuous Attack against Judge Jackson’s Record on Child Pornography"

"Ho-Hum: The Cases Senator Hawley Cites Show Judge Jackson Is an Unremarkable Sentencer in Child-Porn Cases"

"Judge Jackson and Judiciary Committee Republicans Joust on Child-Porn-Possession Case against 18-Year-Old . . . Again"

I flagged the first of these pieces in a prior post, but I want to especially laud Mr. McCarthy for not being content with his important first salvo against this line of attack on Judge Jackson.  Mr. McCarthy makes clear that he is not a fan or supporter of Judge Jackson, but he has still been willing to write a significant series of detailed pieces documenting in so many ways why the sentencing discourse by the GOP here is so misguided.  Kudos to him (and the National Review) for such sentencing sensibility.

March 24, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (5)

Monday, March 21, 2022

Recalling the text of the applicable law which helps account for Judge Jackson's sentencing rulings

I was able to listen to some of the opening statements of Senate Judiciary Committee members during today's installment of the hearings concerning the nomination of Judge Ketanji Brown Jackson to be an Associate Justice of the Supreme Court.  Unsurprisingly, various GOP Senators extolled the importance of judges following the law and being committed to the rule of law:

Senator Grassley: "We depend on judges to interpret the laws as we write them."

Senator Cornyn: "Part of that judgment requires a judge to go where the law commands."

Senator Cruz: "Will you follow the law?" 

Senator Cotton: "I am looking for a Justice who will make decisions based on the law."

Senator Kennedy: "Sometimes Justices have to uphold the rule of law when it is not popular."

These various statement led me to reflect on my recent post about Judge Jackson's sentencings of persons involved with child pornography, and I realized that Judge Jackson’s critics have not asserted that Judge Jackson failed to follow the sentencing laws set out by Congress.  Through 18 USC § 3553(a), Congress has instructed judges in to impose a sentence "sufficient, but not greater than necessary, to comply with the purposes" of sentencing, and also demands that district judges consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."  Since the Booker ruling made the guidelines advisory, guideline ranges are still to be considered, but only as one of multiple statutory factors in service to a "sentencing judge’s overarching duty under §3553(a) to 'impose a sentence sufficient, but not greater than necessary' to comply with the sentencing purposes set forth in §3553(a)(2)."  Pepper v. US, 562 U.S. 476, 491 (2011).

Senator Hawley reiterated during his opening statement what seems to be his chief concern with Judge Jackson's sentencing efforts: “What concerns me, and I've been very candid about this, is that in every case, in each of these seven, Judge Jackson handed down a lenient sentence that was below what the federal guidelines recommended and below what prosecutors recommended and so I think there’s a lot to talk about there.”  Critically, applicable federal sentencing law does not call upon a judge to follow "what the federal guidelines recommended" or "what prosecutors recommended."  Indeed, a sentencing judge who adhered only to guideline or prosecutorial recommendations would arguably violate a judge's obligation of independence and the express text of the law Congress enacted to guide judges at sentencing.

Of course, "what the federal guidelines recommended" is one of many 3553(a) factors to be considered by sentencing judges and "what prosecutors recommended," though not part of the text of federal sentencing law, can still provide judges with insights concerning the proper application of all the 3553(a) factors.  But, to repeat, those recommendations are not the applicable law: Judge Jackson when on the district court was duty bound, to use Senator Cotton's words, to "make decisions based on the law" which means she had "to 'impose a sentence sufficient, but not greater than necessary' to comply with the sentencing purposes set forth in §3553(a)(2)."  Pepper, 562 U.S. at 491.  To parrot Senators Cornyn's and Kennedy's words, Judge Jackson was required at sentencing "to go where the law commands" and to "uphold the rule of law [even] when it is not popular."  Based on insights from her time on the US Sentencing Commission and her considerable judicial service, Judge Jackson surely understood the importance of all the 3553(a) factors in reaching a sentencing outcome, and nobody has suggested otherwise.

Some prior related coverage:

March 21, 2022 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (9)

Thursday, March 17, 2022

Contextualizing Judge Jackson's mainstream sentencing record in federal child porn cases

A tweet stream by Senator Josh Hawley about writings, comments and sentencings by SCOTUS nominee Judge Jackson has kicked off a robust discussion of her attitudes toward sex offenders and those who download child pornography (CP). Senator Hawley's tweets referenced Judge Jackson's law school Note in the Harvard Law Review and questions she asked while on the US Sentencing Commission.  What the Senator references in these tweets struck me as not especially sensational nor ultimately a strong basis for questioning her judicial temperament or philosophy.  But he thereafter discussed Judge Jackson's below-guideline sentencing decisions in CP cases when she served as a federal district judge, and I certainly consider reviews of sentencing decisions to be a fair and sound component of assessing Judge Jackson's record as a jurist.

But, to be truly fair and sound, any review of Judge Jackson's CP sentencings must include proper context regarding the federal sentencing guidelines for CP which are widely recognized as dysfunctional and unduly severe.  As this recent US Sentencing Commission report explains, the CP guideline (2G2.2) "fails to distinguish adequately between more and less severe offenders" (p. 19), and "most courts believe §2G2.2 is generally too severe and does not appropriately measure offender culpability in the typical non-production child pornography case" (p. 22).  With the CP guidelines "too severe" and poorly designed to "measure offender culpability" in the digital age, federal judges nationwide rarely follow them.  Indeed, data in recent (and past) USSC reports document that Judge Jackson's record of imposing below-guideline CP sentences is quite mainstream because: (1) federal judges nationwide typically sentence below the CP guideline in roughly 2 out of 3 cases (p. 23), and (2) federal judges nationwide, when deciding to go below the CP guideline, typically impose sentences around 54 months below the calculated guideline minimum (p. 25).

Reviewing a brief accounting of nine CP cases sentenced by Judge Jackson (which I believe was produced by GOP Senators and/or staff and was forwarded to me), I was first struck by the fact that in a majority of these cases (5 of 9) the prosecution advocated for a below-guideline sentence and in three others the prosecution advocated for only the guideline minimum.  In other words, Judge Jackson was generally sentencing CP defendants in cases in which even the prosecution concluded mitigating factors meant that the guidelines were not a proper benchmark range in light of congressional sentencing purposes.  Notably, the recent USSC report indicates that the government formally moves for a below-range sentence in roughly 1 out of every 5 CP cases (p. 23); it is not clear if prosecutors made formal motions for departures or variances in Judge Jackson's CP cases, but it is clear that in the majority of these cases the prosecutors were the ones who requested a sentence below the CP guidelines.

In the nine cases, Judge Jackson followed the prosecutors' sentencing recommendations in two cases, and sentenced below the prison term suggested by the government in seven others.  One case, US v. Hillie, distorts the average deviation from the prosecutors' recommendations, as the government there sought a sentence of 45 years and Judge Jackson imposed a sentence of "only" 29.5 years. Leaving that case out of the average, in the other eight cases, Judge Jackson's sentence was only about 1.8 years below the recommendation of prosecutors (and about .6 years above the defense recommendations).  In those cases, Judge Jackson did sentence, on average, about 54 months below the calculated guideline minimum, but that degree of reduction from the guideline minimum is almost identical to the national average reduction according to the USSC report (p. 25).

In other words, Judge Jackson's record in these CP cases does show she is quite skeptical of the ranges set by the CP guidelines, but so too were prosecutors in the majority of her cases and so too are district judges nationwide (appointed by presidents of both parties).  I use the word "mainstream" to describe Judge Jackson's sentencing patterns here because they strike me as not at all out of the ordinary; there are surely federal judges who have sentenced CP offenders more harshly, but there are also surely federal judges who have sentenced CP offenders more leniently.  Judge Jackson's sentencing record in CP cases reflects the fundamental flaws of the CP guidelines (and perhaps a relatively mitigated group of offenders she was tasked with sentencing).  As I see it, these cases do not really reveal any kind of unique or uniquely concerning sentencing jurisprudence.

There is more to say on this topic — e.g., I suspect that Judge Jackson's views in these cases were usefully informed by (1) the unanimous bipartisan USSC report authored in 2012 which stressed "the current sentencing scheme results in overly severe guideline ranges for some offenders based on outdated and disproportionate enhancements" and (2) the Justice Department's 2013 follow-up letter that "joined in the call for a critical review of the existing sentencing guidelines for non-production child pornography crimes" — and I suspect we will hear a lot more on this topic in the days ahead.  For now, I will conclude where the title of this post starts: if and when we properly contextualize Judge Jackson's sentencing record in federal child porn cases, it looks pretty mainstream.

March 17, 2022 in Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences | Permalink | Comments (13)

Pleased to see SCOTUS nomination of Judge Jackson bringing more attention to US Sentencing Commission

As folks gear up for next week's Supreme Court confirmation hearing in the Senate, I have been quite pleased to see a number of recent news stories focused on the US Sentencing Commission and the ways in which nominee Judge Jackson's service on the USSC might impact her work on SCOTUS.  Here is a round-up of the most recent pieces:

From Law360, "Sentencing-Commission Years Prepped Jackson for High-Court Job"

From USA Today, "Supreme Court pick Ketanji Brown Jackson could have 'profound' impact on sentencing"

From the Wall Street Journal, "Once Home to Ketanji Brown Jackson, Sentencing Commission Now Sits Quiet as Issues Go Unresolved"

The last of these pieces effectively reviews the broader concern of the USSC lacking a quorum of Commissioners for many years, while flagging how important this body could and should be while the FIRST STEP Act is still being implemented and there remains considerable bipartisan support for some forms of sentencing reform.  Here is an excerpt from the WSJ piece:

President Biden is in position to appoint the whole commission anew, when there is bipartisan support for making some aspects of federal sentencing less harsh. The president, however, hasn’t yet nominated a slate of commissioners and the White House declined to comment on when he may do so.  “The potential for the commission to do big things with the right set of people is huge,” said New York University law professor Rachel Barkow, a former commissioner.

The commission’s acting chairman and lone member, U.S. District Judge Charles Breyer, said he hopes a new commission will conduct a comprehensive review of the federal guidelines. “Science and evidence has come forward suggesting that lengthy sentences do not necessarily result in community safety,” said Judge Breyer, who will remain on the commission until the end of the year.

UPDATE: Though I wanted this post to focus mostly on the USSC, I figure an afternoon update is justified in light of more notable headlines and articles concerning Judge Jackson history and position as an historic SCOTUS nominee:

From the New York Times, "As Jackson Faces Senators, Her Criminal Defense Record Is a Target"

From The Hill, "Hawley says sentences in 10 child porn cases raise red flags on Supreme Court pick"

From Politico, "Durbin, White House slam emerging GOP attack on KBJ sex offender rulings"

From Forbes, "Americans Support Jackson’s Supreme Court Nomination 2-To-1, Study Finds"

March 17, 2022 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (7)

Wednesday, March 16, 2022

US Sentencing Commission publishes 2021 Annual Report and Sourcebook of Federal Sentencing Statistics

I received news via email today that the US Sentencing Commission has now published its 2021 Annual Report and Sourcebook of Federal Sentencing Statistics. Here are the links and highlights that appeared in the USSC email:

FY21 Fast Facts

The Sourcebook presents information on the 57,287 federal offenders sentenced in FY21 (October 1, 2020 through September 30, 2021)—a sentencing caseload that decreased by more than 7,000 from the previous fiscal year.

  • Drug trafficking, immigration, firearms, and fraud crimes together comprised 83% of the federal sentencing caseload in FY21.  
  • Drug trafficking was the most common federal crime type sentenced, accounting for 31% of the caseload. 
  • Immigration cases accounted for the next largest group (30%) but decreased by more than one-third from the number of those cases in FY20. 
  • Methamphetamine continued to be the most common drug type in the federal system, and a steadily growing portion of the drug caseload (up from 31% of drug cases in FY16 to 48% in FY21).
    • In FY21, Fentanyl moved into the top five drug types in the federal caseload. The Commission has added it to the Drug Offenses section of the Sourcebook
  • Methamphetamine trafficking continued to be the most severely punished federal drug crime (90 months).
  • Two-thirds (67%) of drug offenders were convicted of an offense carrying a mandatory minimum penalty, holding steady from the previous year.
  • 69% of federal offenders were sentenced under the Guidelines Manual (either within range or outside the range for departure reasons in the manual). 

Agency Highlights

The Annual Report presents an overview of the Commission's work in FY21.

  • Beginning in FY21 and continuing into FY22, the Commission has operated with only one voting commissioner, lacking the quorum required to promulgate guideline amendments. The Commission’s other statutory duties are unaffected by the lack of four voting commissioners.
  • The Commission published new findings from its largest recidivism study yet—combining Commission and FBI data to study more than 32,000 federal offenders over an 8-year follow-up period.
    • The Commission has now released reports on firearms, drug trafficking, and violent offenders with more reports forthcoming.
  • The Commission also continued to research specific issues of ongoing congressional concern and deliberation—releasing a report on the emerging problem of fentanyl and fentanyl analogues, and two reports updating its 2012 report to Congress on child pornography offenses.
  • In late September 2021, the Commission released the Judiciary Sentencing INformation (JSIN) tool—an online sentencing data resource developed for judges but made available to the public at large. The platform provides quick and easy online access to sentencing data for similarly-situated defendants, including the types of sentences imposed and average and median sentences.
  • In FY21, the Commission conducted 115 virtual training sessions and more than 13,000 individuals attended live, online, or on-demand prerecorded training sessions—a three-fold increase over the number of trainees in a typical year.

March 16, 2022 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)