Wednesday, July 08, 2020

"Retroactivity & Recidivism: The Drugs Minus Two Amendment"

Cover_Drugs-Minus-TwoThe title of this post is the title of this notable new US Sentencing Commission report.  A summary of the report is provided on this USSC webpage and provides these basics:

Summary

This publication analyzes recidivism rates among drug offenders who were released immediately before and after retroactive implementation of the 2014 "Drugs Minus Two" Amendment.

The report tracked the recidivism rate of two study groups:

  • Retroactivity Group: 7,121 offenders who received sentence reductions through retroactive application of the Drugs Minus Two Amendment and who were released early from October 30, 2015, to May 31, 2016.
  • Comparison Group: 7,132 offenders who would have been eligible for sentence reductions through retroactive application of the Drugs Minus Two Amendment but were released between May 1, 2014, and October 29, 2015, having served their full sentences before the Drugs Minus Two Amendment could be retroactively applied

Findings 

The Commission's report aims to answer the research question, "Did the reduced sentences for the Retroactivity Group result in increased recidivism?"  The Commission found the following:

  • There was no statistically significant difference in the recidivism rates of offenders released early pursuant to retroactive application of the Drugs Minus Two Amendment and a comparable group of offenders who served their full sentences.
  • This outcome may be attributed, at least in part, to the eligibility criteria required by the Commission, and the careful consideration of those criteria by judges — particularly public safety considerations — in exercising their discretion to grant or deny retroactivity motions.

Interestingly, though apparently not reaching a level of statistical significance, the Sentencing Commission's data actually show that the group who received reduced sentences had a lower rate of recidivism.  From the Key Findings at page 6 of the full report (with my emphasis added):

There was no statistically significant difference in the recidivism rates of the Retroactivity Group (offenders who were released on average 37 months early through retroactive application of the Drugs Minus Two Amendment) and the Comparison Group (offenders who would have been eligible for retroactivity but had served their sentences before retroactivity took effect). Over a three-year period following their release from prison, the Retroactivity Group had a recidivism rate of 27.9 percent compared to 30.5 percent for the Comparison Group. This outcome may be attributed, at least in part, to the eligibility criteria required by the Commission, and the careful consideration of those criteria by judges — particularly public safety considerations — in exercising their discretion to grant or deny retroactivity motions.

The similarity in the recidivism rates of the Retroactivity Group and the Comparison Group held true across all drug types. Among offenders convicted of offenses with the same primary drug type — Powder Cocaine, Crack Cocaine, Heroin, Marijuana, Methamphetamine, and Other Drugs — offenders in the Retroactivity Group had similar recidivism rates to offenders in the Comparison Group, although the recidivism levels varied by drug type. The highest rates were observed among Crack Cocaine offenders (35.1% in the Retroactivity Group and 37.5% in the Comparison Group) and the lowest rates among Powder Cocaine offenders (19.5% in the Retroactivity Group and 22.3% in the Comparison Group).

I am quite inclined to embrace the USSC's assertion that the exercise of wise judicial discretion in deciding who should get the benefit of retroactive implementation of the 2014 "Drugs Minus Two" Amendment explains why recidivism rates were relative low for those defendants who received reduced sentences. Among other benefits of this conclusion, it should make Congress and the USSC ever more confident that they can safely (and should as a matter of fairness and justice) make any any all reduced sentences fully retroactive (subject to discretionary judicial review upon implementation).

July 8, 2020 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Monday, June 08, 2020

US Sentencing Commission releases awesome new data tool, "Interactive Data Analyzer"

Download (1)I was pleased to receive today from the US Sentencing Commission an email blaring "JUST LAUNCHED: Interactive Data Analyzer." Here is part of the text of the email:

You've got questions, IDA has data! The U.S. Sentencing Commission's Interactive Data Analyzer (IDA) is an online tool that can be used to explore, filter, customize, and visualize annual federal sentencing data. 

Some of IDA's features include:

  • Simple visualization and navigation of complex datasets (tutorial video);

  • Readymade dashboards for the most common federal crime types;

  • Combined annual data and trend analyses spanning five years;

  • Data filters by geography, demographics, crime and drug types;

  • Cross-sectional variable analysis; and

  • Export options that include formatted tables and raw data (tutorial video);

This great new tool is also explained at this USSC webpage, which includes this text:

The Interactive Data Analyzer (IDA) is an online tool that can be used to explore, filter, customize, and visualize federal sentencing data. IDA presents annual data that is stored in a secure data warehouse and refreshed periodically with the latest information collected, received, and edited by the Commission.

IDA offers prebuilt data dashboards for the four most common crime types in the federal caseload and for other common areas of interest. You can navigate to these sections using the main menu.

If you're looking for more granular data, use the filtering menu along the left side of any page. You can select data by fiscal years, jurisdictions, offender characteristics, or other variables. Filtering options will vary based on the topics you choose.

Kudos to the USSC for creating this now and helpful way to access its data. I am already having fund with IDA, and I am certain it will prove to be a useful resource for academics, policy-makers and practitioners.

June 8, 2020 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Saturday, May 30, 2020

"The Case for a Federal Criminal Court System (and Sentencing Reform)"

The title of this post is the title of this notable new article authored by Christopher Slobogin now available via SSRN. Here is its abstract:

This article proposes the establishment of a federal criminal court system, comprised of separate criminal trial courts, circuit courts of appeal and a National Court of Criminal Appeals, with discretionary review by the Supreme Court.  Compared to the 1970s, when there were many fewer cases per judge than there are today, federal criminal adjudications take twice as long, magistrates take on much greater adjudicatory load, and appellate courts much more frequently forego oral arguments, rely on legal staff, and issue unpublished opinions . A specialized judiciary would significantly enhance trial court efficiency and appellate court capacity to produce quality decisions.  Furthermore, because there would be a superior appellate court devoted to ensuring uniform nationwide rules, such a system could more easily resolve doctrinal conflict on criminal justice issues than the current system, which relies on a Supreme Court that is failing to address most of the conflicts among the circuits. 

Perhaps the most important potential benefit of a division of the civil and criminal systems, however, is that the civil system would function more efficiently once criminal cases, which have docket priority at the trial court level, are diverted.  This article also proposes that this separate federal criminal court system return to a more indeterminate sentencing regime that would shift much of the heavy lifting regarding criminal dispositions from judges to expert parole boards.  This proposal would also lessen the appellate workload and ensure that trial judges in a specialized criminal court are not debilitated by the psychologically demanding analysis that currently accompanies sentencing.

May 30, 2020 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Thursday, May 28, 2020

Split Sixth Circuit panel finds above-guideline illegal reentry sentence to be substantively unreasonable

Since Booker made the federal sentencing guidelines advisory and invented a reasonableness standard of review more than 15 years ago, there have been now well over one million federal sentences imposed.  And yet only a few dozen of these million+ sentences have been declared substantively unreasonable by a federal appellate court (even though, by my lights, a good many are truly unreasonable in one sense or another).  Because so few sentences have been found substantively unreasonable, every such decision is blogworthy, and so here I highlight a split Sixth Circuit panel decision handed down yesterday in US v. Perez-Rodriguez, No. 18-4203 (6th Cir. May 27, 2020) (available here). The 15-page ruling is worth reading in full, and here is how the majority opinion starts and its concluding substantive paragraph:

Eduardo Perez-Rodriguez, a citizen of Mexico, was sentenced to 24 months in prison for one count of illegal reentry in violation of 8 U.S.C. § 1326. The district court applied an upward variance that more than doubles the middle of his 8- to 14-month Guidelines range. Perez-Rodriguez challenges the substantive reasonableness of the upward variance and argues that the district court considered facts outside the record in selecting his sentence. Because Perez-Rodriguez’s sentence was substantively unreasonable, we REVERSE the district court’s judgment and REMAND for resentencing....

Because Perez-Rodriguez’s case falls within the mine-run of cases of illegal reentry under the Guidelines, it is subject to closer review to assure that the justification given “is sufficiently compelling to support the degree of variance.” Gall, 552 U.S. at 50.  Based on its upward variance, the district court entered a sentence of 24 months, a 118% increase from the middle of the Guidelines range.  The court’s justification for the upward variance is rooted in Perez-Rodriguez’s “return to the United States after having been previously removed and after having been convicted of reentry after deportation.”  These facts, however, have been accounted for twice in the Guidelines range, both in the criminal history calculation and in the sentencing enhancement under § 2L1.2(b)(1)(A).  Our review of the extent of the upward variance imposed in light of the sentencing goals of § 3553(a) and our caselaw indicates that the court placed too much weight on the § 3553(a) factors concerning criminal history, deterrence, and protection of the public from further crimes of the defendant, and that the court selected the sentence without properly considering sentencing disparities.  Beginning with the correct standard — the Guidelines range, comparing the circumstances in this case to Commission data and our precedent, and applying the § 3553(a) factors show that Perez-Rodriguez’s upward variance was improper and created unwarranted sentencing disparities.  The upward variance imposed was substantively unreasonable.

Here is how the dissent by Judge Murphy gets started:

If I were the sentencing judge in this case, I likely would not have chosen the 24-month sentence imposed on Eduardo Perez-Rodriguez.  He pleaded guilty to illegally reentering this country in violation of 8 U.S.C. § 1326, and his guidelines range was only 8 to 14 months.  My general weighing of the sentencing factors in 18 U.S.C. § 3553(a) would likely place great emphasis on uniformity concerns.  See 18 U.S.C. § 3553(a)(6).  Heavy reliance on the guidelines guards against a system in which each defendant’s sentence turns “on the spin of the wheel that determined the judge to whom the case was assigned.”  Pepper v. United States, 562 U.S. 476, 517 (2011) (Alito, J., concurring in part, concurring in the judgment in part, and dissenting in part).  Yet United States v. Booker, 543 U.S. 220 (2005), gave district judges substantial freedom to adopt competing sentencing views. It allows district courts to depart from a defendant’s guidelines range based on other sentencing factors, including the defendant’s specific circumstances, 18 U.S.C. § 3553(a)(1), or more general penological goals like the need for adequate deterrence, id. § 3553(a)(2)(B).  And, as an appellate judge tasked with implementing Booker’s regime, I do not see a sufficient basis to overturn the district court’s upward variance in this case.  I thus respectfully disagree with my colleagues’ considered contrary opinion.

May 28, 2020 in Booker in the Circuits, Federal Sentencing Guidelines, Sentences Reconsidered | Permalink | Comments (0)

Monday, May 04, 2020

Are federal judges approaching prison sentencing differently now that they see BOP ugliness up close?

The question in the title of this post is prompted by this notable new Forbes piece by Walter Pavlo headlined "After Seeing Federal Bureau Of Prisons Up Close, Federal Judges May See Sentencing Differently In Future." I recommend the piece in full, though I fear it may be a bit too optimistic about the way the COVID era might impact the work of federal judges.  Here are excerpts:

In late March, U.S. District Judge Jesse Furman struggled to look for a way to free Nkanga Nkanga, a sixty-seven-year old former doctor with no prior criminal record who had admitted to unlawfully prescribing oxycodone and other controlled substances for non-medical purposes. Nkanga was held at MDC Brooklyn New York, a notoriously poorly run, dated and filthy prison operated by the Federal Bureau of Prisons (BOP).

Judge Furman, who had remanded Nkanga into custody in October 2019 after entering a guilty plea, was frustrated by what he could and could not do to free the inmate who was suffering from asthma and lingering conditions from a stroke years earlier.  Furman sentenced Nkanga to three years and was awaiting designation to Federal Medical Center Devens.  Assistant US Attorneys Jacob R. Fiddelman and Cecilia E. Vogel vehemently opposed the ailing doctor’s requests for release, frustrating Furman to call on legislatures and executive branch actions to untie his hands....

While judges may have a limited say in the release of an inmate, they have a big say in how long they are incarcerated....

In Ohio, a federal judge ruled that the BOP’s operation of FCI Elkton amounted to an 8th Amendment violation (Cruel and Unusual Punishment).  Lawyers for the BOP responded on April 28, 2020 that the measures the BOP took to curb the virus’s spread had been effective, stating in its emergency motion that, “These efforts have been working as the number of new cases has been reduced.”  I’m not sure where the attorneys got their stats but according to the BOP’s own website that tracks (under-reports) COVID-19 spread, showed a marked increase in cases....

Federal judges across the country have been hearing horrid stories about the BOP’s conditions and the agencies reaction, lack of action, to COVID-19. American Civil Liberties Union (ACLU) chapters have become involved, attempting to bring to light a federal agency’s inept and cruel response to the contagion of a virus that has infected over 2,000 inmates and killed 37. The BOP is inflicting even more, unmeasured, mental distress on both families and inmates.

The BOP’s failure to accurately report positive COVID-19 has endangered both its own staff members and inmates alike.  The promises to send people to home confinement and then taking it away, then possibly reinstating it, is cruel.  Locking minimum security inmates in high security prison cells for weeks and calling it a “quarantine” is something that needs to be investigated.  Directives that have now caused the cutting of communication with family (in-person visits, reduced telephone time and little access to email) is beyond comprehension at a time when people need some social interaction to keep their sanity. Many of these inmates have close family ties and what little correspondence they have had with family has relayed fear, sadness and oppression....

I have given up on prosecutors being a part of any criminal justice reform.  They create narratives, many of them farfetched, to justify long prison terms for crimes that may not have even occurred.  While I’m not saying that “nobody did the crime” what I am saying is that once a prosecutor gets a guilty plea, they exaggerate the crime, usually through inflation of the dollars associated with the crime and enhancements, to get longer sentences.  Judges, who make the ultimate determination of the amount of time a person spends in prison, could be the saving grace to reducing prison populations.  It only took a global pandemic to get them engaged.

Defendants would rather be in front of a judge on July 2020 than one on July 2019.  Judges are going to re-think their sentences.  Their courtrooms are currently jammed with motions for compassionate release, civil rights violations by BOP, and pre-trial pre-sentencing release motions.  Center stage at these hearings are BOP conditions, its policies, its care of inmates and how it treats those employed at these institutions.  In short, federal judges are seeing firsthand how the BOP executes the sentences they impose ... and it is ugly.

Federal judges may hold the key to real criminal justice reform because COVID-19 will make them think about the consequences that their sentences have on the lives of defendants and their families.  They will not be able to un-remember these tragic stories ... and that might be a good thing.

As always, I would be eager to hear (in comments or via email) from persons actively involved in federal sentencing work in this COVID era about whether they think judges are already starting to "re-think their sentences" and whether they are hopeful that federal judges are forever more going to think more "about the consequences that their sentences have on the lives of defendants and their families."  Though I sincerely hope that this current era proves to be "game-changing" for all judges (state and federal, trial and appellate), I am not all that optimistic for a number of reasons (which somewhat echo some points well-made in the great commentary I flagged here this past weekend).

First, as this notable recent Cato report detailed, a remarkably large number of current federal judges are former prosecutors.  As Palvo highlights, a lot of prosecutors get in the habit of assuming defendants are far worse than their convictions reflect and of believing long prison terms effectively achieve serve deterrence and incapacitation goals.  Once acclimated as prosecutors to viewing defendants as generally worse than they seem and tough punishment as critical for public safety, it is easy to take comfort in the notion that all defendants have "earned" whatever terrible prison fate might await them.

Second, judges always have an ultimate "trump card" to get folks out of dangerous prisons by being able to declare prison conditions unconstitutional in violation of the Eighth Amendment.  This commentary mentions the significant ruling by Judge James Gwin (discussed here), but does not note its outlier status.  There have been lots of other rulings nationwide, from federal and state judges, refusing to find constitutional violations and refused to push prison authorities to release inmates from environments where COVID is spread wildly.  (To reinforce my first point, I am pretty sure Judge Gwin never served as a prosecutor, but the federal judge in Louisiana (Judge Terry Doughty) who dismissed a similar suit around the same time served as a state prosecutor for over two decades.)

Third, the federal judicial agency that is supposed to help federal judges do their sentencing jobs better, namely the US Sentencing Commission, has so far failed to say "boo" about the COVID disruption and the ways federal judges are responding (and might be able to better respond).  Of course, this agency has been crippled now for the better part of two years by the failure of Prez Trump and the GOP-led Senate to come together on a slate of new Commissioners so that the agency could be operating at full force.  Still, the USSC staff has managed publish at least three major research documents in the last two months along with a number of smaller publications.  Federal judges might be more emboldened and feel more supported in taking new approaches to sentencing in the COVID era if the USSC was doing more than just whistling its standard sentencing tunes while federal prisons continue to burn.

That all said, my review of dozens of judicial grants of sentence reductions using § 3582(c)(1)(A)  (examples here and here and here and here and here and here) reveals that there are indisputably some — perhaps a good many — sitting federal sentencing judges who "get it" and recognize that the usual horrors and harms of prison are now even more horrible and harmful.  But I still fear that those judges now most concerned with COVID in federal prisons and BOP's inadequate response are just those same judges who have always been most attentive to "the lives of defendants and their families."  I sincerely hope the large number of former-prosecutors-turned-federal judges are starting to look at sentencing issues differently, but my hopefulness ability has been dampened by waiting for former-prosecutor-turned-Justice Samuel Alito to start looking at sentencing issues differently.

On the topic of hope, I would love to hear from readers (in comments or via email) that I am too pessimistic, that lots of judges are likely to look at lots of sentencing issues differently now.  Gosh knows we could all benefit from some small silver linings these days.

May 4, 2020 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences | Permalink | Comments (6)

Wednesday, April 29, 2020

"Length of Incarceration and Recidivism"

The title of this post is the title of of this notable new report just released today by the US Sentencing Commission.  Here is a basic summary and key findings from this USSC webpage:

Summary

Length of Incarceration and Recidivism is the seventh publication in the Commission’s recent series on recidivism. This study examines the relationship between length of incarceration and recidivism, specifically exploring three potential relationships that may exist: incarceration as having a deterrent effect, a criminogenic effect, or no effect on recidivism. (Published April 29, 2020)

Report Findings
  • The Commission consistently found that incarceration lengths of more than 120 months had a deterrent effect.
    • Each of the research designs estimated that offenders incarcerated for more than 120 months were less likely to recidivate eight years after release. In the two models with the larger sample sizes, offenders incarcerated for more than 120 months were approximately 30 percent less likely to recidivate relative to a comparison group receiving less incarceration. In the third model, offenders incarcerated for more than 120 months were approximately 45 percent less likely to recidivate relative to a comparison group receiving less incarceration.
  • In two models, the deterrent effect extended to incarceration lengths of more than 60 months.
    • Specifically, offenders incarcerated for more than 60 months up to 120 months were approximately 17 percent less likely to recidivate relative to a comparison group sentenced to a shorter period of incarceration.
  • For incarceration lengths of 60 months or less, the Commission did not find any statistically significant criminogenic or deterrent effect.
    • When focusing on the shortest period of incarceration studied (12 to 24 months), the research designs yielded varying results, neither of which were statistically significant nor sufficiently reliable to make evidence-based conclusions.

April 29, 2020 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Thursday, April 23, 2020

In praise of (split) Fourth Circuit panel prioritizing sentencing fitness over finality

A few years ago, I wrote this article, titled "Re-Balancing Fitness, Fairness, and Finality for Sentences," in which I urged policy-makers and judges to be "less concerned about sentence finality, and to be more concerned about punishment fitness and fairness, when new legal developments raise doubts or concerns about lengthy prison sentences."  The article came to mind as I reviewed a new (split) panel ruling from the Fourth Circuit in US v. Chambers, No. 19-7104 (4th Cir. Apr. 23, 2020) (available here).  Here is how the majority opinion gets started:

Erroneously sentenced as a career offender, Brooks Tyrone Chambers is currently serving an almost 22-year prison sentence on a pre-2010 crack-cocaine offense.  In 2019, he moved to reduce his sentence to time served under the First Step Act.  Because the First Step Act gives retroactive effect to sections 2 and 3 of the Fair Sentencing Act of 2010, his statutory minimum would drop from 20 years to 10 years.  In his motion, he asked the district court to apply retroactive intervening case law, under which he would not be a career offender.  Without the enhancement, Chambers’s Guidelines range would also drop to 57 to 71 months; with it, his Guidelines range would remain the same — 262 to 327 months.

The district court determined that Chambers was eligible for a sentence reduction under the First Step Act, but it proceeded to perpetuate the career-offender error when recalculating the Guidelines.  Nor did it exercise its discretion to vary downward.  Instead, the court denied Chambers’s motion to reduce his custodial sentence, though it granted the motion as to his supervised release term.  Because the First Step Act does not constrain courts from recognizing Guidelines errors, and because the district court seemingly believed that it could not vary from the Guidelines range to reflect post-sentencing information, we vacate the district court’s resentencing order.  Additionally, we now hold that any Guidelines error deemed retroactive, such as the error in this case, must be corrected in a First Step Act resentencing.

Here is how the dissent gets started:

Modification of a final sentence requires express congressional authorization.  The majority’s decision sidesteps this statutory imperative and instead reasons that district courts are free — and here, required — to modify final sentences unless specifically prohibited from doing so.  Congress enacted Section 404 of the First Step Act to retroactively reduce disparities between the crack and powder cocaine sentencing schemes; the statute is silent about other changes to a defendant’s final sentence.  The majority finds in this silence an implicit grant of authority to retroactively correct Sentencing Guidelines errors based on intervening law, an authority this Court has rejected in the context of collateral challenges to final sentences.  I would instead conclude that 18 U.S.C. § 3582(c)(1)(B) authorizes only the modification “expressly permitted” by the First Step Act, which does not include reevaluating a defendant’s career-offender Guidelines designation in light of a post-sentencing change in the law.

Since a judge at any full resentencing is now obligated to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth" in 18 USC 3553(a)(2), it really ought not matter too much what sentencing range gets spit out in a guideline calculation.  But because many judges still focus a lot on guideline calculations, I am pleased to see the majority here is eager to make sure the district court is focused on a correct guideline calculation.

April 23, 2020 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Monday, April 20, 2020

US Sentencing Commission continue to publish helpful data about the pre-COVID federal sentencing world

I keep waiting, impatiently, for the US Sentencing Commission to produce some data or information about federal sentencing realities in our modern COVID world.  I would love to see some data on, for example, how many sentencings are going forward each week given that, in normal times, about an average of 1500 federal sentences are imposed in federal courts every week of the year.  I would also be eager to know if a larger number than usual non-prison sentences are being imposed in those sentencings that are going forward.  And data on sentence reductions motions involving § 3582(c)(1)(A) would also be so very interesting. 

That said, I understand the challenges for the USSC in trying to produce accurate real-time data in even the best of times, and so I will just keep praising the USSC for what they are producing even while I keep hoping for COVID-era data.  Specifically, the USSC merits praise for continuing to produce new reports and data collections and Quick Facts based on its recently completed 2019 Annual Report and Sourcebook of Federal Sentencing Statistics.  Specifically, federal sentencing fans will want to check out these newer item from the USSC website:

OVERVIEW OF FEDERAL CRIMINAL CASES (Published April 16, 2020)  This publication provides a brief, easy-to-use reference on the types of criminal cases handled by federal courts in fiscal year 2019 and the punishments imposed on offenders convicted in those cases.

2019 GEOGRAPHIC SENTENCING DATA (Published April 17, 2020)  These data reports compare fiscal year 2019 federal sentencing statistics for each judicial district, judicial circuit, and state to the nation as a whole.

QUICK FACTS

April 20, 2020 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (0)

Tuesday, April 14, 2020

US Sentencing Commission released new report on "Path of Federal Criminality: Mobility and Criminal History"

Cover_mobilityI find it more than a little ironic and depressing that the US Sentencing Commission, amidst a viral pandemic requiring lockdowns for everyone and creating unique risks for inmates who are confined with so many others, has today released a new research report with "mobility" in its title.  Tone-deaf timing aside, this new report serves as another interesting bit of criminal history research being done by an agency that has been functionally crippled for now the better part of two years because of the lack of confirmed commissioners. 

Though I keep hoping the USSC might step up to the current moment with some real-time data on federal sentencing practices and outcomes during this remarkable moment, I suppose we should all still be grateful that the USSC staff is still able to get its regular work done.  This latest report is focused on interesting aspects of past state convictions for federal offenders, and here is how it is summarized on the USSC's website:

Summary

(Published Aprill 14, 2020)  This study expands on prior Commission research by examining the geographic mobility of federal offenders. For this report, mobility is defined as having convictions in multiple states, including the location of the conviction for the instant offense. This report adds to the existing literature on offender criminal history in two important ways. First, the report provides information on how mobile federal offenders are, as measured by the number of offenders with convictions in multiple states. Second, the report provides information on the proportion of offenders with convictions in states other than the state in which the offender was convicted for the instant offense. The report also examines the degree to which out-of-state convictions in offenders’ criminal histories contributed to their criminal history score and their Criminal History Category.

Key Findings
  • Almost one-third (30.0%) of the total federal offender population in fiscal year (FY) 2018 had convictions in more than one state.
  • The mobility of federal offenders varies by offender characteristics:
    • Immigration offenders were the most likely to have convictions in more than one state (38.7%), while child pornography offenders were the least likely (16.4%) to have convictions in more than one state.
    • Just under one-third (31.8%) of male offenders had convictions in two or more states compared to 17.8 percent of female offenders.
    • Hispanic offenders (31.0%) were the most likely to have convictions in more than one state, closely followed by White (29.3%), Black (28.5%) and Other race (27.8%) offenders.
  • The percentage of offenders having convictions in states other than the state of their instant offense varied from a high of 59.2 percent in North Dakota to a low of 10.5 percent in the territory of Puerto Rico.
  • A total of 13,904 FY 2018 offenders had out-of-state convictions that received criminal history points. Almost three-quarters of these offenders (73.9%) had a higher Criminal History Category due to these convictions.

April 14, 2020 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (0)

Thursday, April 09, 2020

Federal prison population, due seemingly to COVID responses, hits another modern low (which is still very high)

2020-04-09Every Thursday morning, one can see at this webpage an official refreshed count of the total number of federal inmates as calculated by the Federal Bureau of Prisons. That page also has a chart and data on the total number of federal inmates for each fiscal year going back to 1980.  A quick look at these data show that in FY 2013 the federal prison population hit a modern high of 219,298.

But this morning, we are down to a federal prison population of "only" 173,686 inmates.  I put "only" in quotes because back in 1980 we had only 24,640 federal prisoners.  But the next 30+ years, through the heart of the "tough-and-tougher," the federal prison population grew by 900% as both Democratic and Republican administrations invested more and more money on more and more federal prosecutions while generally asking for longer and longer sentences for those who were federally convicted.

But, after 2013, a range of political, social and practical realities helped create a new and steady trend of reduced federal incarceration levels.  Notably (though not often noted), data here from the US Sentencing Commission shows there were roughly 20,000 fewer offenders being sentenced in the federal system between 2011 (when 86,201 persons were sentenced in federal courts) and 2017 (when "only" 66,873 persons were sentenced).  In addition, retroactively applied reductions in crack sentences and then in all drug sentences contributed to further federal decarceration. 

But, starting in 2018, the number of offenders being sentenced in the federal system started to tick back up; in 2019, according to the USSC, we were all the way back up to 76,538 sentenced federal offenders.  Yet, working the other way, the new good-time credit flowing from the FIRST STEP Act and other reforms in that Act helped to thwart a complete reversal in the downward trends of the total number of persons in federal prison.  I commented in this post back in July 2019 that, thanks in part to Obama era developments and the FIRST STEP Act, the federal prison population had dropped under 180,000 prisoners for the first time since way back in FY 2003.  At that moment, I was truly unsure how various cross-cutting trends might impact the federal prison population in the months and years to come.  I made these concluding points in that prior post:

I have been following these numbers closely for a number of years, and I have been especially focused on week-to-week changes during the years of the Trump Administration because I feared that an uptick in federal prosecutions and various new sentencing directives begun under then-Attorney General Jeff Sessions might reverse the trend of prison population reduction that started during the second part of the Obama Administration.  But it seems that a lot of forces worked in various ways to kept the federal prison population at just over 180,000 inmates for much of the last three years.  And now, thanks to the FIRST STEP Act's "good time fix" finally kicking in, we are this week significantly below that 180,000 inmate threshold.

I would love to be able to predict that the FIRST STEP Act will ensure that the federal prison population keeps going down, but I am not sure that would be a sound prediction.  It is possible that the continued robust implementation of various components of the FIRST STEP Act will keep the downward trends moving.  But continued increases in the number of cases prosecutors by the Justice Department could get us back to an era of federal prison population growth (though that growth would likely be relatively modest).

Of course, we are in a whole new world of federal crime and punishment now.  We are in a COVID world.  It is waaaaaaay too early to make any long-term predictions.  But I wanted to flag today that we are at a new modern low with the federal prison population at "only" 173,686 inmates.  Just two weeks ago, before judges were starting to reduces sentences in response to compassionate release motions and before Attorney General Barr urged the Bureau of Prisons to move more offenders into home confinement, this population count was over 175,000.  Given this new COVID trend, I am inclined to predict we will see the federal population below 170,000 before the end of this month (though we should all know now how uncertain all COVID-related predictions must be).

Long term, as my prior comments are meant to highlight, what will likely matter most for the federal prison population is how many new offenders are getting sentenced and for how long.  Will federal prosecutors be bringing thousands more federal fraud and firearm prosecutions in the months ahead?  Will they be bringing thousands fewer federal drug and immigration prosecutions?  Will federal sentencing judges be inclined to be more lenient (or less lenient) in a COVID world?  As we see these prosecution and sentencing trends develop, we will know if the modern trend of federal decarceration will keep unfolding.

April 9, 2020 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Impact of the coronavirus on criminal justice, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Wednesday, April 08, 2020

"The Misplaced Trust in the DOJ's Expertise on Criminal Justice Policy"

The title of this post is the title of this notable new paper authored by Shon Hopwood now available via SSRN. Here is its abstract:

In this Review of Professor Rachel Barkow's new book, Prisoners of Politics: Breaking the Cycle of Mass Incarceration, I address Professor Barkow’s point about law enforcement resisting criminal justice reforms.  I place particular emphasis on the Department of Justice’s (DOJ) and the National Association of Assistant U.S. Attorneys’ (NAAUSA) opposition to nearly any federal criminal justice reform.  Federal prosecutors often claim that they just enforce the law — no more, no less.  But their actions show the contrary.

Through presidential administrations of both parties, the DOJ and the NAAUSA have affirmatively opposed most federal criminal justice reforms on issues involving sentencing, corrections, and clemency.  Oftentimes they weigh in on issues for which their prosecutors have no expertise.  Even worse, they have thwarted the goals of the very presidents they serve, especially if the president sets out to reform the system in ways that infringe on the DOJ’s prerogatives. 

If their opposition to reform were rooted in public safety or fairness, that would be one thing.  But through their lobbying efforts, they often advocate for policies that make it easier for federal prosecutors to charge and incarcerate people — as if that is the only worthy goal of the federal criminal justice system.  And all too often federal policymakers — whether members of Congress, the White House, or the U.S. Sentencing Commission — have listened.  As a result, there are now nearly 4,450 federal statutes and hundreds of thousands of federal regulations carrying criminal penalties, excessively punitive federal sentences, and a federal prison population that has increased by 618 percent since 1980.

April 8, 2020 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Recommended reading, Who Sentences | Permalink | Comments (0)

Tuesday, March 24, 2020

US Sentencing Commission published its 2019 Annual Report and Sourcebook of Federal Sentencing Statistics

I have been a bit disappointed, but not at all surprised, that the US Sentencing Commission has not yet put out any data or statement about the coronavirus outbreak that is roiling the federal criminal justice system.  The USSC is not really geared up for producing real-time data even under the best of circumstances, and these are not anywhere close to the best of circumstances.  Nevertheless, I hope that, before too long, the USSC might be able to provide some kind of real-time updates on just how many sentencings are now being conducted in federal courts and/or providing updates to regular data set like Offenders in the Federal Bureau of Prisons.

Still, it is somewhat comforting to see that the USSC has been able to complete some of its usual major data undertakings even amidst all the virus turmoil.  Specifically, yesterday I received this news via email from the USSC:

[Monday] the U.S. Sentencing Commission published its 2019 Annual Report and Sourcebook of Federal Sentencing Statistics.

The Annual Report presents an overview of the Commission's work in fiscal year 2019.

The Sourcebook presents information on the 76,538 federal offenders sentenced in fiscal year 2019 — a sentencing caseload that increased for the second consecutive year. 

Fast Facts

  • The federal sentencing caseload increased by more than 7,000 cases from FY18, returning to a size similar to the caseloads of FY14 and earlier. 
  • Immigration offenses increased by more than 5,000 cases from the previous year and accounted for the largest single group of federal crime — a position held by drug offenses in FY17. 
  • Drug trafficking and firearms offenses also increased by approximately 1,000 cases each.  
  • Methamphetamine offenses, the most common drug type in the federal system, continued to rise (up from 31% of drug offenses in FY16 to 42% in FY19).
  • Methamphetamine trafficking continued to be the most severely punished federal drug crime (average sentence of 95 months). 
  • Three-quarters of federal offenders were sentenced under the Guidelines Manual in FY19.

I find a bit jarring this final statement that only "three-quarters of federal offenders were sentenced under the Guidelines Manual in FY19." In the Annual Report, the USSC more clearly explains that what they mean by this phrasing is "that the sentence was within the applicable guidelines range, or was outside the applicable guidelines range and the court cited a departure reason from the Guidelines Manual."

I hope to find time in the coming days to review these reports to flag some additional interesting data points about federal sentencing in FY19 (which ran from October 1, 2018, through September 30, 2019). Among other virtues, these data provide a useful baseline on what the federal sentencing system looked like in the year before the new coronavirus shock.

March 24, 2020 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, February 20, 2020

Roger Stone gets 40-month federal prison sentence ... but will he ever actually serve it?

As reported in this Politico piece, headlined "Roger Stone was sentenced Thursday to just more than three years in prison, a decision that raises immediate questions about whether President Donald Trump will pardon his longtime political confidant for what the president has decried as a miscarriage of justice." Here is more about notable sentencing:

U.S. District Court Judge Amy Berman Jackson handed down Stone’s 40-month sentence in a packed Washington, D.C., courtroom after spending more than two hours ticking through the twisted history of his case... "The problem is nothing about this case was a joke,” Jackson said moments before sentencing Stone. “It wasn't funny. It wasn't a stunt and it wasn't a prank.”

Stone, who passed on a chance to address the courtroom, stood silently with his attorneys for nearly 45 minutes while the judge explained the reasoning behind her sentence. The punishment, she said, grew in large part from the severity of his attempts to stymie the Russia probe, violations of a gag order limiting his speech during the pre-trial proceedings and for making a threat to the judge through social media. “He was not prosecuted for standing up for the president,” Jackson added in her closing remarks. “He was prosecuted for covering up for the president.”

Jackson’s sentence for Stone — among the most severe to-date in a case originating from special counsel Robert Mueller — came a week after his potential punishment triggered a furor at the Justice Department. Stone’s case has become a flashpoint for broader concerns about political meddling in high-profile legal cases....

Jackson, an appointee of President Barack Obama, jumped at the chance to press one of the newly-assigned prosecutors, John Crabb, about the issue as he delivered the government’s final comments. “I want to apologize to the court for the confusion the government caused with respect to sentencing,” Crabb said.... Under questioning by Jackson, Crabb confirmed that the original recommendation was approved by a former aide to Barr who was recently installed as U.S. Attorney in Washington, Tim Shea.

Crabb said the confusion stemmed from miscommunication between Barr and Shea, but Crabb declined to elaborate. When the judge asked whether Crabb wrote the revised recommendation, he demurred again, saying that — despite his earlier comments — he was not permitted to discuss “internal deliberations.” While Trump has denounced the decision to prosecute Stone, Crabb took a contrary position, echoing comments Barr made in an interview last week, where he called the prosecution of Stone “righteous.”...

Without mentioning any names, the judge suggested that some critics of the original recommendation seemed unusually moved by Stone’s plight, even though the guidelines that DOJ followed — first adopted in the 1980s to rein in judges’ discretion — sometimes produce extraordinarily long sentences.

“For those of you new to this and who woke up last week to the fact that the...guidelines are harsh, I can assure you that defense attorneys and many judges have been making that point for a long time, but we don’t usually succeed in getting the government to agree,” Jackson scoffed.

Later, Jackson noted that the government’s decision to argue that Stone should get less prison time than federal sentencing guidelines recommend was a definite deviation from standard practices adopted by the Trump administration. “It’s not just a question of good faith, but whether it was fully consistent with current DOJ policy,” she said. “The current policy of this Department of Justice is to charge and prosecute the most serious offense available in order to get the highest guideline level.”

Crabb acknowledged that is “generally” DOJ’s current policy and that line prosecutors are not permitted to deviate from it without approval from higher-ups. And while Trump has suggested the judge has been cruel towards his allies like former Trump campaign chairman Paul Manafort, Crabb came to the judge’s defense Thursday, saying “the government has the utmost confidence” in her, and praising her “thoughtful analysis and fair sentences” in related cases....

The judge also said that when making her decision, she took into account Stone's social media attacks on the court during his prosecution that raised security concerns at the courthouse. "This is intolerable to the administration of justice and the courts should not sit idly by, shrug its shoulders and just say it's 'Roger being Roger,’” Jackson said.

Stone, 67, has sought to avoid any prison time. During Thursday’s hearings, his defense argued he had no criminal record and should get a reprieve because he’s a family man about to become a great-grandfather. “Consider the full scope of the person who stands before you in sentencing," said Seth Ginsberg, a new defense lawyer brought on for sentencing. “Mr. Stone has many admirable qualities,” Ginsberg added, urging Jackson to look beyond the "larger than life persona" Stone plays on TV. He noted Stone's charity work to help veterans, animal welfare and NFL players suffering from traumatic brain injuries.

Earlier this week, Judge Jackson indicated that Stone would not have to start serving his sentence until she rules on his motion for a new trial. I expect that Prex Trump will be inclined to hold back on any possible clemency action at least until that motion is resolved and Stone faces the prospect of heading to prison. (As some may recall, Prez GW Bush did not commute Lewis Libby's prison sentence until the DC Circuit denied his request for bail pending appeal.)

Prior related posts:

February 20, 2020 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (3)

Wednesday, February 19, 2020

Roger Stone case generating some useful reflections on federal sentencing challenges and problems and lessons

Roger Stone is scheduled to be sentencing on Thursday and this Bloomberg piece provides a bit of the lay of the land starting this way:

Roger Stone’s sentencing on Thursday is shaping up as a test of judicial independence after President Donald Trump inserted himself in the court’s deliberations over the fate of his longtime confidant. If U.S. District Judge Amy Berman Jackson sentences Stone in line with the Justice Department’s new and lower recommendation, partisans will see that as caving to Trump, former federal prosecutor Harry Sandick said. If she gives a jail term closer to the maximum, she’ll be seen as defying the pressure.

“Given how polarized the country is, some people will look to Jackson to be a hero and give him a long sentence, and others will look to her to be a hero and give him a short sentence, but she’ll likely come in somewhere in between,” Sandick said. “She doesn’t need to be a hero. She’s a federal judge.”

Jackson said Wednesday that she’ll allow Stone to remain free regardless while she considers his bid for a new trial and any other motions filed after the sentencing. Speculation that sending him straight to prison could prompt Trump to swiftly pardon him rose after the president issued a slate of high-profile clemencies Tuesday in cases often supported by conservatives.

I am a bit sad that I am not teaching my sentencing course this semester because so many of the elements around, and the challenges that surround, federal sentencing decision-making could be effectively taught through the lens of the Stone case.  Helpfully, a number of thoughtful folks have taking already penned thoughtful pieces that use the Stone case to spotlight various federal sentencing challenges and problems and lessons.  Here are some that have caught my eye that are worth reading in full (and that I quote from too briefly just to whet appetites):

By Michael Zeldin at CNN, "In Stone case, a blast from the Obama past":

Barr's approach, in this instance involving a Trump ally, was more consistent with the DOJ guidance for charging and sentencing issued by Attorney General Eric Holder under President Barack Obama -- a policy that the Sessions memorandum essentially reversed. What, you may be asking? Yes, in my opinion, in this case, Barr appears to have followed more closely DOJ's policy as it stood under Obama's attorney general, rather than under Sessions, who said at the time that he was ushering in the "Trump Era."

By Rory Fleming at Filter, "Can Roger Stone Case Spark Debate on the Dreadful US Sentencing Guidelines?"

Arguably the worst part is that federal sentencing under the Guidelines takes into account all the defendant’s “relevant conduct”—including conduct as a kid, including whether or not the conduct was charged and including charges that have resulted in acquittal. And the standard of proof in court for aggravators is ”proof” by the preponderance of the evidence—which means considered more likely than not—rather than “beyond a reasonable doubt.”

By Timothy Zerillo at Medium, "The Roger Stone Sentencing Highlights the Impact of Federal Sentencing Enhancements":

Every day, in all 94 of the District Courts throughout the United States, defendants will be sentenced and enhancements will be metered out. These enhancements, along with mandatory minimums and a desire to punish rather than rehabilitate, all serve to contribute to our culture of mass incarceration. Regardless of your opinion about Roger Stone, his situation highlights how sentences can skyrocket based on sometimes fair, sometimes ridiculously unfair, sentencing enhancements.

By Sarah Lustbader at The Appeal, "One Thing Barr Gets Right: The Sentencing Guidelines Are Indeed Too Harsh":

Given that disparities between rich and poor still run rampant in the criminal system, it is tempting for those of us in the social justice community to take the DOJ at its word in its amended sentencing memo when it urges a tailored, nuanced, and lenient outcome. The government even included in the memo a reminder that “the Supreme Court has stated that a sentencing court ‘may not presume that the Guidelines range is reasonable but must make an individualized assessment based on the facts presented.’” One civil rights attorney suggested on Twitter that federal defense lawyers file memos in all of their cases, stating that the DOJ believes that guidelines sentences are not presumptively reasonable.

By Mike Scarcella at The National Law Journal, "The Hardest Thing About Being a Judge? What Courts Say About Sentencing":

“It is just not a natural or everyday thing to do—to pass judgment on people, to send them to prison or not," one federal appeals judge once remarked.  Here's a look at how judges across courts have described the challenge of sentencing, as Roger Stone prepares to learn his fate.

Prior related posts:

February 19, 2020 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Tuesday, February 11, 2020

For Roger Stone, federal prosecutors advocate for within-guideline sentence of 7.3 to 9 years in prison ... which Prez Trump calls a "miscarriage of justice!"

As reported in this Politico piece, "Federal prosecutors are urging that longtime Donald Trump adviser and Republican political provocateur Roger Stone be sent to prison for about seven to nine years for his conviction on charges of lying and witness tampering during investigations of ties between Russia and the Trump campaign." Here is more about the sentencing filings in this high-profile case that emerged late yesterday:

The stern recommendation is starkly at odds with a suggestion from Stone's defense team that he should be sentenced to probation — and no jail time — in the case.

Following a weeklong trial last November, a Washington jury found Stone guilty on all seven felony counts he faced: five of making false statements to Congress, one of obstruction of Congress, and one of witness tampering with both the House Intelligence Committee inquiry and special counsel Robert Mueller's probe.

In a sentencing filing Monday, prosecutors from the U.S. Attorney's Office in Washington argued that Stone's conduct was exceptionally sinister because of the importance of those investigations and the danger of overseas influence on U.S. elections. "Foreign election interference is the 'most deadly adversar[y] of republican government,'” prosecutors from the U.S. Attorney's Office in Washington wrote, quoting Alexander Hamilton's Federalist Paper No. 68....  The argument was strikingly similar — in some cases borrowing from the exact passages from the same Constitution-era text — as that lodged by the House's prosecutors during Trump's impeachment trial. "Alexander Hamilton cautioned that the 'most deadly adversaries of republican government may come 'chiefly from the desire in foreign powers to gain an improper ascendant in our councils,'" the House members argued in their trial brief....

While prosecutors tied the gravity of Stone's crimes to their impact on the electoral system, the bulk of the prison time authorities are calling for is a product of the prosecution's decision to treat hostile and vulgar messages Stone sent to longtime associate Randy Credico as genuine threats of violence, or at least as having the potential to stir up violence against Credico or others.  Prosecutors pointed, in particular, to a message Stone sent to Credico after he indicated plans to cooperate with the House committee. "Prepare to die, cocksucker," Stone wrote.  In another instance, Stone told Credico, who has a therapy dog, that he would "take that dog away from you."

Stone said during the trial his comments were in jest and part of the brash banter often exchanged between the two men, whose views are usually at opposite ends of the political spectrum. Prosecutors insisted that the barbed remarks mean Stone deserves between four and five years longer under federal sentencing guidelines than in cases involving witness tampering efforts that involve no physical threats.... Prosecutors acknowledged that Credico — a liberal New York city talk show host, comedian and activist — recently wrote to the court saying he did not think Stone was threatening him physically. Credico's letter urged that Stone get probation.  However, prosecutors also noted that during the trial, Credico said he was concerned about Stone's statements because they could encourage others to get violent.

Defense lawyers, who weighed in with U.S. District Court Judge Amy Berman Jackson late Monday night, vigorously disputed the notion that Stone's statements to Credico were actual threats to do anything.  They noted that at the trial Credico called Stone's comments "hyperbole" and said Stone "loves all dogs," so he could not have actually intended to harm Credico's service dog, a tiny Coton de Tulear who's almost constantly at his side. "Stone’s indecorous conversations with Randy Credico were many things, but here, in the circumstances of this nearly 20-year relationship between eccentric men, where crude language was the norm, 'prepare to die cocksucker' and conversations of similar ilk, were not threats of physical harm, 'serious acts' used as a means of intimidation, or 'the more serious forms of obstruction' contemplated by the Guidelines," Stone's lawyers wrote....

Stone, 67, faces a maximum of 50 years in prison at the sentencing, which Jackson has set for Feb. 20. Prosecutors say federal sentencing guidelines urge between 87 to 108 months in prison for Stone.  The defense disputes several aspects of that calculation and argues that the guidelines call for just 15 to 21 months.  Judges have the right to sentence above or below the guidelines, but are required to calculate the recommended sentence and take it into account.

Stone's defense also submitted a collection of letters from his wife and acquaintances in the political sphere and elsewhere.  "I can't tell you that Roger is a saint — he pushes everything to the limit even with you," Stone's wife Nydia wrote, alluding to Stone's run-ins with the judge over her gag orders and perhaps to an Instagram post he sent during the trial that included a picture of Jackson next to what appeared to be crosshairs. She also proclaimed her husband "loyal, kind, loving, considerate, generous and good-natured," as well deeply committed to Trump's re-election.

Among others asking for leniency for Stone were Democratic political consultant Hank Sheinkopf and former New York Republican gubernatorial candidate Carl Paladino.  Stone's supporters saluted him as an early backer of gay rights and marriage equality, an opponent of animal testing and a strong advocate for the easing of New York state's tough Rockefeller drug laws.

I am not surprised to see the upcoming Roger Stone sentencing to engender an interesting debate over both guideline calculations and 3553(a) factors (not to mention the real meaning of colorful phrases).  Here are the full filings from the parties:

Unsurprisingly (and I think importantly), President Donald Trump is not at all keen about the sentencing advocacy of his Department of Justice in this case. Among other tweets on the topic, Prez Trump retweeted a lament about federal prosecutors seeking "A *9 year* prison recommendation for non-violent crimes committed by a 67-year-old man." In addition, Prez Trump had this original tweet on the topic in the wee hours (just before 2am EST):

Regular readers know that plenty of extreme (and within-guideline) sentencing recommendations by federal prosecutors have kept me up at night, although I usually turn to blogging rather than tweeting to express my concerns about the banal severity and cruelty of the federal criminal justice system.  (For the record, all US Presidents — current, former and wanna-be — have an open invitation to guest-blog here about any sentencing matters!) 

Based on the submissions, I am inclined to (tentatively) predict that Judge Amy Berman Jackson will come to a lower guideline calculation than urged by prosecutors and yet still impose a below-guideline sentence.  But I still expect the sentencing judge to impose some prison time on Stone, at which point it will be interesting to see if Prez Trump will make another controversial use of his clemency power.  If Stone gets less than a year, I suspect Trump will leave him to serve his sentence at least until the upcoming election, as he has with Paul Manafort. 

As always, I welcome comments and other predictions from readers.

UPDATE: This Fox News article, headlined "DOJ expected to scale back Roger Stone's 'extreme' sentencing recommendation: official," suggests that federal prosecutors may soon be changing their sentencing tune in this high-profile case.

February 11, 2020 in Clemency and Pardons, Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences | Permalink | Comments (0)

Monday, February 03, 2020

Noticing that two Justices keep noticing challenges to old (vague?) guidelines

Law360 has this lengthy new piece, headlined "In Dissent: Why 2 Justices Keep Spotlighting Career Offenders," which flags the notable sentencing-related work of a couple of Justices in orderl lists. Here are the essentials:

Close watchers of the U.S. Supreme Court may have noticed a recurring theme in orders issued over the past two years.

In at least 27 cases, Justices Sonia Sotomayor and Ruth Bader Ginsburg have gone out of their way to dissent from their colleagues’ rejection of petitions by “career offenders,” or people serving extra-long sentences due to prior violent crime or drug convictions.

The petitioners claim that the U.S. Sentencing Guidelines, which were mandatory at the time of their sentencing hearings, defined violent crimes by using an unconstitutionally vague phrase.  Their argument is supported by [the 2015 Johnson] high court ruling that invalidated the exact same phrase as it was used in a separate law.  The Seventh Circuit Court of Appeals and district courts in four other circuits have explicitly agreed with their reasoning, but six appellate courts have rejected it. Sotomayor highlighted that fact in an October 2018 dissent called Thilo Brown v. U.S. — the first time she and Ginsburg publicly scolded their colleagues for refusing to take up the split.

“This case presents an important question of federal law that has divided the courts of appeals and in theory could determine the liberty of over 1,000 people,” Sotomayor wrote, citing figures in an amicus brief supporting Brown. “That sounds like the kind of case we ought to hear.”...

Despite their efforts, the two justices have had no success in peeling off peers. With the court looking unlikely to resolve the circuit split, some career offenders in places like Wisconsin, Illinois and Texas are getting out years earlier than planned. Others, in places like California, Tennessee and Kansas, have no shot at relief beyond a presidential clemency or legislative reform....

Part of the reason for the other justices’ reluctance to take up the issue could be the fact that the alleged injustice is an “issue of diminishing importance,” according to Leah Litman, a University of Michigan law professor who co-signed briefs in related cases. “No one is still being sentenced under that provision,” Litman said. “It just concerns people being resentenced. Because it won’t arise in the future, it has less purchase on the court’s time.”

February 3, 2020 in Federal Sentencing Guidelines, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (0)

Wednesday, January 29, 2020

Dispensary owner gets (within-guideline?!) federal prison term of 15+ years for marijuana sales that could be legal under most state laws

The headlined of this local article from Michigan, "Michigan medical marijuana seller gets prison: ‘Federal law has not changed,’ judge says," does not fully capture all the notable elements of a federal sentencing for marijuana sales yesterday.  Here are the details via the press article:

The former owner of medical-marijuana dispensaries in several Michigan cities was sentenced Tuesday, Jan. 28, to nearly 16 years in federal prison.  Danny Trevino, 47, of Lansing, who had Hydroworld dispensaries in Grand Rapids, Flint, Jackson, Lansing and elsewhere, had avoided state criminal and civil penalties over the years but was convicted of multiple federal charges.

“States are changing marijuana laws across the country, certainly that’s true, but federal law has not changed,” U.S. District Judge Paul Maloney said.

Trevino sought the statutory minimum sentence of five years in prison. Maloney instead sentenced Trevino to 15 years, eight months in prison - at the low end of advisory sentencing guidelines, which ranged from 188 to 235 months.

The sentence upset several family members and pro-marijuana activists who attended the sentencing in Grand Rapids. “What you saw is a travesty,” Detroit resident Richard Clement said. His shirt read: “#GETNORML,” “#WARONDRUGS” and “CANNACURES.”

He said it was difficult to reconcile what he called a harsh sentence in a state where marijuana is legal. He and others think Trevino was targeted because he is Hispanic. “This was totally racist,” a woman said, leaving the courthouse. “None of the (other dispensaries) ever get raided.” She was with Trevino’s family but refused to give her name....

Trevino, who has operated dispensaries since 2010, was convicted in an August jury trial of 10 felony charges, including conspiracy to manufacture, distribute and possess marijuana and maintaining a drug-involved premises. He was not allowed to use the state’s medical-marijuana law as a defense to the federal charges.

Nonetheless, the government said, he acted outside of the boundaries of the state medical-marijuana law. Defense attorney Nicholas Bostic called that a “fallacy.” He said that Trevino was successful in challenging state complaints after he had been arrested and the subject of several search warrants. He was arrested in April 2014 in Grand Rapids for delivery or manufacture of marijuana and maintaining a drug house but charges were dropped a month later, court records showed.

He fought forfeitures of funds seized by police that were ultimately returned by state courts. Trevino’s businesses were raided 16 times between 2010 and 2016, the government said. He provided the state with store records and tax records that showed his businesses brought in nearly $3 million.

“He thought he was legal,” Bostic told the judge. He said his client, whose previous drug convictions prevented him from being a caregiver, oversaw the operation. He said that every single sale of medical marijuana at his businesses would have been legal under laws in 33 states and the District of Columbia that allow medical or recreational marijuana. Trevino earlier told MLive: "How could I not have been in compliance if I was acquitted and found not guilty. We were winning and they didn’t charge us, so we kept going.”

Assistant U.S. Attorney Daniel McGraw said Trevino knew he acted illegally under federal law. He called Trevino “defiant, unrepentant and undeterred from committing the current federal crimes.” After federal investigators used a search warrant at one of his locations in 2016, Trevino posted on Facebook: “I guess Hydroworld is illegal. Lol OK.”

McGraw said Trevino acted as though marijuana – legalized in 2018 for recreational use in Michigan – was always legal. Trevino was “told time and time again that it was illegal and your honor, he simply didn’t care. He didn’t care. He kept operating," the prosecutor said.

The judge said his concern was Trevino’s conduct under federal law. “I fully recognize that the landscape has changed in many states in this country,” Maloney said. “The fact is, marijuana is a Schedule 1 controlled substance.” He noted that Congress has eliminated the mandatory minimum prison sentence for crack cocaine but has not acted on marijuana.

He said Trevino “had to know he was on the radar screens of federal authorities.” The judge ordered Trevino to serve four years on supervised release once his prison term ends. He also fined Trevino $11,000.

Without seeing more materials from this case, I am adverse to making too many quick judgments about this outcome. But nearly 16 years for quasi-legal marijuana sales seems pretty severe absent a lot more aggravating facts.  This article suggests that the defendant here was a "problem child" under Michigan state law, and so I suppose I can understand why the feds went after him and why the judge decided he merited a significant sentence. But if the defendant possibly believed that he was complying with state law, it seems misguided to sentence him pursuant to federal sentencing guidelines that are based around the “heartland” of a fully illicit drug dealer.

January 29, 2020 in Booker in district courts, Drug Offense Sentencing, Federal Sentencing Guidelines, Marijuana Legalization in the States, Offense Characteristics, Pot Prohibition Issues | Permalink | Comments (3)

Wednesday, January 22, 2020

Council on Criminal Justice releases new papers on "Federal Sentencing Provisions of the 1994 Crime Bill"

Sentencing_Report_LinkI noted in this post this past summer the notable new group working toward criminal justice reform called the Council on Criminal Justice.  In September, I flagged in this post that the Council on Criminal Justice had gotten started on a great new set of  papers and resources taking a close look at the 1994 Crime Bill.  The first two paper in the series, Overview and Reflections by Richard Rosenfeld and Impacts on Prison Populations by William Sabol and Thaddeus Johnson, both provided terrific perspectives and details on the import and impact of the 1994 Crime Bill.

I am now very pleased to report that the third paper in this series has been published under the title "Tough and Smart: Federal Sentencing Provisions of the 1994 Crime Bill."  If you click through to the full paper, you can see that one of the reasons I am pleased to see it published is because I am its author.  I was very honored to get a chance to work with the CCJ team on this project, and all the folks involved with CCJ were quite effectively invested in helping me work through the various complicated federal sentencing stories that emerged from the 1994 Crime Bill.

I recommend that interested persons read this piece in full, as there are lots of intricacies to this story that I was only able to partially capture in what is meant to be a short read.  The start and end of the piece provides a hint of its essential points:

When President Bill Clinton signed the Violent Crime Control and Law Enforcement Act of 1994 (the Crime Bill), he called it the “toughest and smartest crime bill in our history.” Enhancing penalties across a wide range of offenses, the Crime Bill included many provisions that not only justified the “tough” label, but also fueled “get-tough” rhetoric and behavior by federal, state, and local officials nationwide.  This well-known legacy, however, obscures what may be one of the most consequential sentencing provisions in this massive law — a “smart” sentencing section that has allowed tens of thousands of people convicted of drug crimes to avoid certain severe mandatory minimum terms enacted by Congress in the 1980s....

Reflecting the “tough-on-crime” attitudes of the times, some federal lawmakers criticized the Crime Bill as not tough enough despite its many punitive elements. Just weeks after passage of the landmark legislation, Republican lawmakers introduced the Contract with America, which included a promise to adopt a Taking Back Our Streets Act within the first 100 days of what signers hoped would be a Republican-held Congress.  This pursuit of even harsher penalties and even more federal funding for prison construction than what was authorized in the Crime Bill was not surprising; in fact, such calls reflected much of the political and policy thinking of the time — on both sides of the aisle.  In this era, talking tough was widely seen not only as essential to success at the ballot box, but also as the sound policy response to all crime concerns.

While the spirit and text of the Crime Bill focused on a tougher approach to crime and punishment, its sentencing provisions with among the greatest tangible impact were those that enabled people convicted of lower-level drug offenses to receive less severe sentences, and laid the foundation for future crack cocaine sentencing reforms.  Despite that often overlooked reality, the Crime Bill fostered and reinforced tough-on-crime attitudes in Washington and among state and local criminal justice officials that contributed to historic growth in national prison populations.

January 22, 2020 in Data on sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Scope of Imprisonment | Permalink | Comments (0)

US Sentencing Commission releases new report on "Inter-District Differences in Federal Sentencing Practices"

As reported via this USSC webpage, the US Sentencing Commission has this morning released this big new report under the full title "Inter-District Differences in Federal Sentencing Practices: Sentencing Practices Across Districts from 2005 - 2017." Here is a summary and key finding from the USSC's webpage:

This report is the third in a series of reports. It examines variations in sentencing practices—and corresponding variations in sentencing outcomes—across federal districts since the Supreme Court’s 2005 decision in United States v. Booker.

The Commission’s ongoing analysis in this area directly relates to a key goal of the Sentencing Reform Act of 1984: reducing unwarranted sentencing disparities that existed in the federal judicial system. In particular, the Act was the result of a widespread bipartisan concern that such disparities existed both regionally (e.g., differences among the districts) and within the same courthouse. Having analyzed the differences within the same courthouse in its Intra-City Report, the Commission now turns in this report to examining regional differences since Booker....

Key Findings

While the extent of differences in sentencing practices vary depending on the specific primary guideline, the overarching trends indicate that, consistent with the findings of the Commission’s 2012 Booker Report, sentencing outcomes continue to depend at least in part upon the district in which the defendant is sentenced. In particular, the Commission finds that:

  • Variations in sentencing practices across districts increased in the wake of the Supreme Court’s 2005 decision in Booker.  These inter-district sentencing differences have persisted in the 13 years after Booker and six years after the Commission’s 2012 analysis.

  • Sentencing differences increased for each of the four major offense types analyzed (fraud, drug trafficking, firearms related offenses, and illegal reentry) during the Gall Period.  This trend continued for some, but not all, of the four offense types in the six years following the last period analyzed in the Commission’s 2012 Booker Report.

  • Guideline amendments intended to promote uniformity by addressing judicial concerns regarding severity have had an inconsistent impact on inter-district disparity.  Specifically, despite multiple significant revisions to the drug trafficking guideline, including the two-level reduction of the base offense level for all drugs, districts increasingly diverged in their sentencing practices for drug trafficking offenders.  However, the comprehensive amendment to the illegal reentry guideline contributed to increasing uniformity in sentencing practices in the Post-Report Period.

  • Certain districts have consistently sentenced more — or less — severely in relation to the guideline minimums than other districts, both over time and across offense type.

I am already looking forward to finding time to review and assess this latest big report from the USSC. But I cannot help but note at the outset that detailed data work which focuses almost exclusively on sentencing differences without any detailed discussions of sentencing severity or sentencing efficacy seems largely out of sync with the current political and policy criminal justice concerns expressed by both public officials and advocates.

Prior related post:

January 22, 2020 in Booker and Fanfan Commentary, Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Friday, December 20, 2019

"Punishing Pill Mill Doctors: Sentencing Disparities in the Opioid Epidemic"

The title of this post is the title of this notable new article authored by Adam Gershowitz just posted to SSRN. Here is its abstract:

Consider two pill mill doctors who flooded the streets with oxycodone and other dangerous opioids.  The evidence against both doctors was overwhelming.  They each sold millions of opioid pills.  Both doctors charged addicted patients hundreds of dollars in cash for office visits that involved no physical examinations and no diagnostic tests.  Instead, the doctors simply handed the patients opioids in exchange for cash.  To maximize their income, both doctors conspired with street dealers to import fake patients — many of them homeless — so that the doctors could write even more prescriptions.  Both doctors made millions of dollars profiting off the misery of people addicted to opioids.  Even though juries convicted both doctors of similar criminal charges, they received drastically different sentences.  The first doctor was sentenced to 5 years, while the second doctor received a 35-year-sentence.

This article reviews 25 of the worst opioid pill mill doctors to be sentenced in the last five years, and it details drastic sentencing disparities in the federal system.  In more than half the cases, judges departed well below the Federal Sentencing Guidelines to impose sentences that were decades less than would be expected.

The sentencing variations in pill mill cases are not driven by traditional explanations such as the trial penalty or the defendant’s criminal history.  Instead, the sentencing variations are explained primarily by the age of the doctors.  Many pill mill doctors are in their 60s and 70s, and judges appear to be tailoring their sentencing decisions to ensure that older doctors will not spend the rest of their lives in prison.  Additionally, prosecutors face an uphill battle in proving the drug quantity against white-collar doctors (rather than street dealers) who can claim that some of their prescriptions were legitimate.  This article documents the difficulty of equitably punishing pill mill doctors, as well as the significance of age in sentencing older, white-collar offenders.

December 20, 2019 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (1)

Sunday, December 08, 2019

"From Warfare to Welfare: Reconceptualizing Drug Sentencing During the Opioid Crisis"

The title of this post is the title of this new article authored by Jelani Jefferson Exum now available via SSRN. Here is its abstract:

The War on Drugs officially began in 1971 when President Nixon decried drug abuse as “public enemy number one.”  The goal of the war rhetoric was clear — to cast drug abuse and the drug offender as dangerous adversaries of the law-abiding public, requiring military-like tactics to defeat.  Criminal sentencing would come to be the main weapon used in this pressing combat.  In continuation of the war efforts, the Anti-Drug Abuse Act of 1986 was passed under President Reagan, establishing a weight-based, and highly punitive, mandatory minimum sentencing approach to drug offenses that has persisted in some form for the last thirty years.  When the Act passed, crack cocaine was touted as the greatest drug threat, and crack cocaine offenders — the vast majority of whom were Black — were subjected to the harshest mandatory minimum penalties.  Like any war, the consequences of the War on Drugs has had widespread casualties, including (but not limited to) the devastation of many communities, families, and individuals; the increase in racial disparities in punishment; and fiscal catastrophe in penal systems across the country.  What the War on Drugs has not done is eradicate drug abuse in the United States.  And now, nearly fifty years after drugs became our national enemy, we have a new face of drug crime — the opioid addict.

The current Administration has recognized that “[d]rug addiction and opioid abuse are ravaging America.”  However, rather than ramping up punishment for opioid offenders through lengthier drug sentencing, in October 2017 the opioid crisis officially became a Public Health Emergency under federal law.  And while it is largely understood that this was mostly a symbolic statement with little practical effect, the rhetoric is markedly different than it was during the purported crack epidemic of the 1980s. Rather than drug offenders being the enemy, the opioid addict has been cast as the American Everyman, and the opioid addiction problem has become known as the “crisis next door” that “can affect any American, from all-state football captains to stay-at-home mothers.”

Now that the drug emergency is portrayed as destroying wholesome American communities — as opposed to poor, crime-ridden communities of color — the tone has changed from punishment toward treatment and rehabilitation.  The National Institute on Drug Abuse (NIDA) at the National Institutes of Health (NIH) has described opioid misuse and addiction as “a serious national crisis that affects public health as well as social and economic welfare.”  While we are in the midst of this shift in messaging about drug addiction, it is an ideal time for drug sentencing as a whole to be reconceptualized from use as a weapon — designed to destroy — to having a public welfare agenda.  To do this it requires recasting potential drug offenders as community members, rather than enemies.  This change in perspective and approach also necessitates understanding drug crime as undeterred by incarceration.  The tasks must be to decide on a goal of drug sentencing, and to develop multifaceted approaches to address and eradicate the underlying sources of the drug problem.  When this is done, we may find that more appropriate purposes of punishment — rehabilitation and retribution — compel us to think beyond incarceration, and certainly mandatory minimum sentencing laws, as the appropriate punishment type at all.

December 8, 2019 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (0)

Wednesday, November 06, 2019

"Acquitted Conduct Should Not Be Considered At Sentencing"

The title of this post is the title of this notable recent Law360 commentary authored by Robert Ehrlich, the former governor of Maryland. I recommend the full piece, and here are excerpts:

John Adams famously declared, “Representative government and trial by jury are the heart and lungs of liberty." Indeed, given the role the jury trial plays in our modern criminal justice system.

The jury trial was designed as an indispensable structural check on government. A safeguard the framers of the Constitution considered so paramount to a free people that it was enshrined in the Sixth Amendment.

Trial by jury is essential to preserving liberty because it protects individuals from arbitrary use of government power by allowing the people to act independently of the state. Accordingly, upholding the people’s role in the administration of justice is foundational to upholding the purpose of this procedural guarantee.

Against this background, U.S. Sens. Dick Durbin, D-Ill., and Chuck Grassley, R-Iowa, recently introduced the Prohibiting Punishment of Acquitted Conduct Act of 2019. The bill seeks to address the insidious practice known as acquitted conduct sentencing, wherein a judge enhances a sentence based on conduct underlying charges for which a defendant has been acquitted by a jury.

You read that correctly. Under current law, federal judges are permitted to sentence individuals based on charges for which a jury found them not guilty....

Lower standards of proof at sentencing — in conjunction with 18 U.S.C. Section 3661, legal precedent and application of the guidelines — means that federal judges may consider a wide array of relevant conduct in determining a defendant’s sentence, including conduct for which underlying charges have been acquitted by a jury. While the Supreme Court determined acquitted-conduct sentencing did not violate the double jeopardy clause in Watts, the court has never addressed whether the Sixth Amendment right to a trial jury prohibits the practice....

The bottom line: Acquitted-conduct sentencing effectively divests individuals of their Sixth Amendment right to trial-by-jury by divesting citizens of their historical and constitutional role in the administration of criminal justice.

While a defendant remains “not guilty” on paper, the sentencing judge’s veto of the jury’s verdict renders the acquittal meaningless for all practical purposes. Consideration of acquitted conduct at sentencing effectively eliminates the democratic role of the jury in the criminal justice system, inverting the power structure to allow government to limit the people rather than people to limit the government.

Acquitted-conduct sentencing is an affront to individual liberty, and judicial or legislative action would be welcome responses to the unconstitutional practice. The Prohibiting Punishment of Acquitted Conduct Act would amend 18 U.S.C. Section 3661 to explicitly preclude federal courts from considering acquitted conduct at sentencing, except as a mitigating factor. Congress should advance this simple reform to restore the Constitution’s basic guarantees of due process and the right to trial by jury.

A few of many recent and prior related posts on the acquitted conduct:

November 6, 2019 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Sunday, October 13, 2019

Catching up with another round of sentencings in "Operation Varsity Blues"

Three more parents were sentencing this past week by US District Court Judge Indira Talwani in the "Operation Varsity Blues" college admissions scandal.  Here are the headlines and essential from press accounts of these latest high-profile federal sentencings:

From NBC News, "NYC man, wife both sentenced to month in prison in college admissions scam: Gregory and Marcia Abbott paid $125,000 to have their daughter's SAT and ACT altered":

A New York man and his wife were each sentenced Tuesday to a month behind bars for paying a college-admission fixer to boost their daughter's SAT and ACT scores.  Gregory and Marcia Abbott will also have to complete a year of supervised release, pay a $45,000 fine and perform 250 hours of community service each, under sentences handed down in Boston by U.S. District Court Judge Indira Talwani.

The couple had already pleaded guilty in May to a single count each of fraud and conspiracy, paying $125,000 to ring leader Rick Singer for someone to correct answers on their daughter’s college board exams....

Prosecutors had asked Talwani to sentence the Abbotts to eight months in prison each.  Defense lawyers had sought probation for the pair.  The couple paid $50,000 to have a test proctor correct their daughter's ACT exam answers in 2018, and then another $75,000 to fix her SAT.

From the Los Angeles Times, "Bay Area entrepreneur is spared prison in college admissions scandal":

If any of the parents waiting to be sentenced in the college admissions scandal stood a chance at avoiding prison, it was Peter Jan Sartorio. He was, by any measurement, a small fish in a case filled with high-profile names and deep pockets: The $15,000 the 54-year-old food entrepreneur from the Bay Area paid to rig his daughter’s college entrance exam matched the lowest amount parents shelled out in the scam.  And with neither fame nor fortune, Sartorio didn’t fit the mold of the rich, entitled parent who prosecutors said needed to be punished with time behind bars.  He also was the first to admit his guilt.

On Friday a judge in Boston decided Sartorio was, in fact, less culpable than the others.  She spared him prison time, sentencing him instead to probation and community service. 

Sartorio is the eighth parent sentenced in the case and, for all up to now, U.S. District Judge Indira Talwani decided some amount of incarceration was needed.  The judge opted to go more lightly on Sartorio than she did on the actress Felicity Huffman, who received two weeks in prison for the same offense.  Sartorio was ordered to spend a year on probation, serve 250 hours of community service and pay a $9.500 fine....

Prosecutors had sought a one-month sentence for Sartorio, saying it was clear the father of two knew at the time that what he was doing was wrong. They underscored in court papers that when it came time to pay Singer, Sartorio avoided leaving a paper trail by paying cash and made multiple withdrawals from different accounts to avoid triggering automatic reviews by banking officials.

Prior related Varsity Blues posts:

October 13, 2019 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (0)

Monday, September 23, 2019

Gearing up for the next round of sentencings in college admissions scandal

This new Los Angeles Times article, headlined "Prosecutors in college admissions scandal fighting for prison time for parents," reports on arguments and analyses in the run up to the federal sentencings of other persons who have pleaded guilty in the high-profile college admissions scandal. Here are highlights:

Shortly before she sentenced Felicity Huffman this month to two weeks in prison for her role in the college admissions scandal, a judge settled a lingering legal dispute.  Prison sentences for parents who admitted to taking part in the scheme would not be based on how much money they paid to take part in the scam, U.S. District Judge Indira Talwani ruled.

The ruling didn’t impact Huffman because the $15,000 she paid to rig her daughter’s college entrance exams was far less than what others shelled out.  But starting this week, Talwani will sentence 10 more parents, and her decision dealt a blow to prosecutors, who tried to convince her that higher payments should mean longer sentences.

The parents and their attorneys, meanwhile, have been left with mixed signals from the judge.  On the one hand, her ruling means parents could receive significantly lower prison sentences or avoid prison altogether.  On the other, Talwani’s decision that Huffman should spend some time incarcerated is a sign she’ll come down as hard or harder on other parents, experts said.  “She would need a very compelling reason to give someone with the same or more culpability less time,” said James Felman, an attorney and expert on white-collar sentencing norms who isn’t involved in the case.

The prosecution doubled down after their defeat.  In an effort to salvage the prison sentences they maintain are warranted in the case, they are trying a new tack.  Rather than staking the rationale for incarceration to the five- and six-figure sums parents paid to access the bribery and cheating operation run by college admissions consultant William “Rick” Singer, the government wants Talwani to punish them for the deviousness and audaciousness of their crimes.

Under the new approach put forth in court papers filed by Assistant U.S. Atty. Eric Rosen, parents who took elaborate, deliberate steps to sneak their kids into a school or tried to cover their tracks afterward would be more culpable than someone who simply wrote Singer a check.

Rosen’s gamble will be tested this week when Talwani sentences two Los Angeles businessmen in court hearings Tuesday and Thursday.  Up first is Devin Sloane, an executive at a water technology company who has admitted paying Singer and an alleged accomplice $250,000 to get his son into USC by misrepresenting the teen as a talented water polo player who deserved a spot on the school’s team.

Before Talwani made her ruling, Rosen asked the judge to sentence Sloane to one year in prison.  The prosecutor did not budge from the request in a new filing last week, even though the judge’s order means Sloane — and all of the parents Talwani sentences — are eligible for sentences ranging from no time in prison to six months incarcerated under federal sentencing guidelines that judges consult.

Rosen argued in his recent filing that a year in prison was still the appropriate penalty, pointing to what he called Sloane’s “moral indifference during the fraud, and his lack of remorse afterward.”...  Rosen also revived the idea that the size of Sloane’s payment should have some bearing on his sentence, despite Talwani’s ruling.  He wrote that while the $250,000 sum is “an imperfect measure of blameworthiness,” it still amounted to an “indication, however rough, of the lengths he was willing to go to obtain the illegal fruits of a fraud scheme.”

Nathan Hochman, an attorney for Sloane, countered with a lengthy written plea, making a case for why Talwani should spare the 53-year-old father from prison.  Hochman portrayed Sloane as a stand-up, well-intentioned father who got caught up in the pressure cooker of the college application process and made a regrettable decision.  Far from eschewing responsibility, Hochman said Sloane owned up to his crime soon after he was arrested in March.  Instead of prison, Hochman urged to Talwani to give Sloane probation and 2,000 hours of community service.

Attorneys for Stephen Semprevivo, who will be sentenced Thursday, asked Talwani to spare him prison as well, saying probation and 2,000 hours of community service would suffice.  Semprevivo, they wrote in a court filing, was a “victim” of Singer, a “master manipulator” who coaxed and eventually coerced Semprevivo into going through with the fraud.

Rosen rebuffed that portrayal, saying the Los Angeles business development executive should spend 13 months in prison for conspiring with Singer to bribe a Georgetown tennis coach to recruit his son, who didn’t play tennis, at a cost of $400,000.  Rosen laced into Semprevivo for making his son “an active participant in a long-term federal crime” and making the decision to file a lawsuit against Georgetown in an attempt to keep the school from annulling his son’s credits.

Prior related posts:

September 23, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0)

Wednesday, September 18, 2019

US Sentencing Commission releases FY 2018 third-quarter sentencing data showing continued growth of immigration cases

US Sentencing Commission has this week published here its "3rd Quarter ... Preliminary Fiscal Year 2019 Data."  As previously noted in this post when the USSC released data on offenders sentenced during the first half of fiscal year 2018, the Commission has recently tinkered with how it accounts and reports sentencing data.  This new data run notes some additional tweaking, though the very first chart about federal offenders by type is quite straight-forward and always notable. 

What strikes me as especially notable is that, through the first three quarters on FY19 (which runs through June 30, 2019), a full 37.4% of all federal cases sentences involved immigration offenses.  In FY18, "only" 34.4% of the sentenced case caseload involved immigration offenses, and in FY17 only 30.5% of the sentences cases were immigration cases.  Among other consequences, the fact that so much of the federal sentencing docket is now comprised of immigration cases necessarily impact lots of other sentencing statistics (e.g., the race an nationality of offenders).

As always, many stories might be mined from the latest USSC data, and I welcome reader thoughts on which stories might be the most interesting or important these days.

September 18, 2019 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (0)

Monday, September 16, 2019

Just some (of many) perspectives on Felicity Huffman's sentencing

Lots of folks have lots of views on what we should make of the the sentencing of Felicity Huffman late last week to 14 days in incarceration in the college bribery scandal. Here are just a sampling of some of the pieces that caught my eye:

From CNN, "John Legend says prison is not always the answer after Felicity Huffman's sentence"

From Walter Palvo at Forbes, "Felicity Huffman And America's Failing Criminal Justice System"

From Fox News, "Felicity Huffman's 14 day prison sentence in college admissions scam sparks outrage on social media"

From Fox News, "Felicity Huffman's prison sentence 'more of a burden on the jail system' than on the actress: expert"

From David Oscar Marcus at The Hill, "Felicity Huffman's 14-Day Sentence is Unjust — Because It's Too High"

From Ellen Podgor at White Collar Crime Prof Blog, "More Varsity Blues — Privilege and Perspective"

To add my two cents, I will just say that I continue to be disappointed at our system's and our society's general failure to treat and view any sentencing terms other than imprisonment as "real punishment." Of course, most persons subject to any form of criminal investigation and prosecution will report that the process itself is very often a significant punishment and so too can be any period of supervision and the array of collateral consequences (both formal and informal and often lifetime) that always accompany a criminal conviction. But, problematically, the perception persists that anything other than prison, and often anything less than a lengthy period in prison, is but a trifle.

Prior related posts:

September 16, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (7)

Friday, September 13, 2019

Felicity Huffman sentenced to 14 days in college bribery scandal 

Especially in high-profile cases, I have a tendency to predict (i.e., guess) that a judge will be inclined to impose a sentence somewhere in the middle between the two sentencing recommendations put forward by the prosecution and the defense.  Given that federal prosecutors in the Felicity Huffman case urged  one-month sentence, and that her defense team sought no jail time, I suppose I should have predicted this result (as reported by ABC News): "Felicity Huffman sentenced to 14 days in prison for 'Varsity Blues' college scam." 

This USA Today piece provides some highlights from the sentencing hearing and the preliminary "loss" ruling made by by the District Judge that also should ensure a number of the other defendants in this case are feeling better about their likely fate in future sentencings:

U.S. District Judge Indira Talwani sentenced Huffman to [14 days of] prison time as well as a $30,000 fine, supervised release for one year and 250 hours of community service in the case's first sentencing of a parent – a defendant who is also one of the case's most famous.

She was confronted in court by a prosecutor who argued for a prison term and said she had shown "disdain and contempt for the rule of law." But her legal team argued that she should not be treated "more harshly" because of her wealth and fame.

Huffman also apologized again for her actions and reiterated her regrets to her family. "I take full responsibility of my actions and making amends with my crime," she said. "I will deserve whatever punishment you give me."...

Assistant U.S. Attorney Eric Rosen argued forcefully in court, saying "the only meaningful and efficient sanction is prison" and "there is simply no excuse for what she did.”

"With all due respect to the defendant, welcome to parenthood," he said. "What parenthood does not do is it does not make you a felon, it does not make you cheat… Most parents have the moral compass to not step over the line. The defendant did not."

He noted that Huffman did not disengage from her conduct "until the very, very end.” She showed “disdain and contempt for the rule of law,” Rosen said....

Huffman's attorney, Martin Murphy, argued for 12 months of probation and 250 hours of community service for Huffman. He disputed the government’s argument that probation is “not real punishment,” calling that a “penological joke. That is simply wrong and it is wrong as a mater of law. … A sentence of [probation]is real punishment.”

Murphy called for a sentence that treats Huffman like other similarly situated defendants, "not more harshly or more favorably for her wealth....Unlike what the government says, that is not fair."...

The judge issued an order Friday agreeing with the court's probation department, which found no financial losses, and thus no victim, as a result of actions by any defendant, including Huffman. It's a blow to prosecutors, who had argued universities and testing companies suffered damages. Still, Talwani said sentences will account for "consideration of all of the factors" outlined in federal guidelines.

Prior related posts:

September 13, 2019 in Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (3)

Thursday, September 12, 2019

Council on Criminal Justice produces papers on "The 1994 Crime Bill: Legacy and Lessons"

Via email, I learned the Council on Criminal Justice has a great new set of developing papers and resources taking a close look at the 1994 Crime Bill.  The materials are assembled on this page, and here are highlights:

On September 13, the Crime Bill turns 25.  After a quarter century, it’s as controversial as ever — and as important to understand.

What did the Crime Bill actually do? What does the research say about the impact it had on crime and justice? What lessons does it offer policymakers today?

To help answer these critical questions, the Council commissioned analyses from some of the nation’s most respected crime experts.  Papers examining the major provisions of the bill will be released over the coming months.

Overview and Reflections - Richard Rosenfeld 

Part One: Impacts on Prison Populations - William Sabol 

September 12, 2019 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (1)

Wednesday, September 11, 2019

Noticing the interesting (but perhaps not too consequential) guidelines "loss" issue lurking in the college bribery cases

This Wall Street Journal piece, headlined "Weighing the Sentencing of Parents in the College-Admissions Cheating Scheme," effectively covers the high-profile hearing yesterday that focused on whether defendants in the college admission scandal cases have produced "loss" in the technical parlance of the guideline sentencing world.  Here are excerpts:

A federal judge prolonged the suspense Tuesday over whether parents who have admitted to cheating to get their children into college will serve time in jail, deciding not to rule following a hearing on sentencing guidelines.

In a packed courtroom, U.S. District Judge Indira Talwani heard arguments in a legal debate that has pitted federal authorities against one another in the high-profile college admissions case.

Federal probation officials have pegged sentencing guidelines for the parents at zero to six months — a range often resulting in probation — finding there was no direct financial loss to any victims. Prosecutors are arguing that some prison time is the way to send a strong message that admission spots at prestigious U.S. universities can’t be bought and have proposed ways of calculating loss.

The government is asking for one to 15 months of imprisonment for the 11 parents set to be sentenced in the coming weeks, including actress Felicity Huffman on Friday. “This was a massive nationwide fraud case fueled through bribery, fraud and corruption,” Assistant U.S. Attorney Eric Rosen told the judge....

In a sign of what’s at stake — prison time or none — defense lawyers for the 15 parents who have pleaded guilty and for the 19 who haven’t admitted guilt filled the gallery of Courtroom Nine, spilling into the empty jury box. Other lawyers dialed into a conference line, though none spoke during the hearing.

A more lenient ruling by the judge could prompt more parents to plead guilty, defense lawyers said, while others might decide to try to clear their names at trial, figuring a light punishment is the worst outcome.

Judge Talwani gave no clear sign of how she’ll rule, but she didn’t reschedule Ms. Huffman’s sentencing currently on the calendar for Friday, suggesting a decision could come soon. She asked a series of often technical questions and indicated that a public airing of the legal dispute was a good thing.

Tuesday’s hearing represented a public clash that has dogged the largest college-admissions scandal ever prosecuted by the Justice Department: Who are the financial victims, and how should the length of any prison terms be decided?

Determining appropriate punishments is complex. Sentencing in federal fraud cases are typically calculated based on direct financial impact, either as loss for the victim or gain for the perpetrator. In plea agreements, the government considered the amounts parents paid to admitted scheme mastermind William “Rick” Singer as a proxy for loss, while also taking into account factors such as how actively parents participated or involved their children.

That means prosecutors are recommending one month of incarceration for Ms. Huffman, a sentence at the low end of the zero-to-six-month range. The “Desperate Housewives” and “American Crime” actress has admitted to paying Mr. Singer $15,000 to fix her daughter’s SAT score. But they are asking for substantially more prison time for some other parents, based on the amounts they admitted to shelling out to Mr. Singer.

Prosecutors say victims include the affected colleges, including the University of Southern California and Georgetown University, and standardized testing agencies. Colleges have been sued, have had to revamp policies and conduct costly internal investigations, they said. “All these events I talked about cost money,” Mr. Rosen said. “Money that came out of the victims’ pockets.”

Probation officials, who prepare influential sentencing recommendations for the court, have so far found that the parents’ conduct caused no clear pecuniary harm, according to a recent memo filed by Mr. Rosen.  In a filing Monday, the lawyer for one parent who has pleaded guilty called the losses alleged by the government either nonexistent or speculative.

I suggest in the title of this post that a ruling on this "loss" matter might not be too consequential for a couple of reasons: (1) for certain defendants, the loss determination may not considerably alter the applicable guideline sentencing range, and (2) Judge Talwani can surely justify above- or below-guidelines sentences in these cases on any number of reasonable 3553(a) sentencing grounds no matter what the final calculated range.  That said, all federal sentencing practitioners know that calculated guidelines ranges still have an important anchoring effect on the work of judges, and so it is not at all surprising that a whole lot of defense lawyers are interested in not losing this "loss" matter.

Prior related posts:

September 11, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (6)

Monday, September 09, 2019

Sixth Circuit finds 30-day sentence given to Senator Rand Paul's attacker "substantively unreasonable"

To my knowledge, a full 15 years after Booker created the reasonableness standard of appellate review for federal sentencing, I believe there are still only a handful of cases in which circuit courts have declared a sentence to be "substantively unreasonable" upon a defendant's appeal claiming it included a prison term that was too long.  But today a Sixth Circuit panel manages to declare yet again, upon an appeal by the government, that a sentence is "substantively unreasonable" because the term of incarceration was too short.  And this ruling in US v. Boucher, No. 18-5683 (6th Cir. Sept. 9, 2019) (available here), comes in quite the high-profile setting.  Here is how it begins:

Senator Rand Paul was mowing his lawn when he stopped to gather a few limbs in his path.  Without warning, Rene Boucher — Paul’s next-door neighbor, whom he had not spoken with in years — raced toward Paul and attacked him from behind.  The impact broke six of Paul’s ribs, caused long-lasting damage to his lung, and led to several bouts of pneumonia.  Boucher later pleaded guilty to assaulting a member of Congress in violation of 18 U.S.C. § 351(e). Although his Guidelines sentencing range was 21 to 27 months in prison, the district court sentenced him to 30 days’ imprisonment.  On appeal, the Government argues that Boucher’s sentence was substantively unreasonable.  We agree and therefore VACATE his sentence and REMAND for resentencing.

I have largely stopped following circuit reasonableness rulings because they so often seemed void of real content or character.  This Boucher ruling has some considerable content and character, as it runs a full 16 pages and concludes this way:

In a mine-run case like this one, we apply “closer review” to any variance from the Guidelines. Kimbrough, 552 U.S. at 109 (quoting Rita, 551 U.S. at 351).  And our review here reveals no compelling justification for Boucher’s well-below-Guidelines sentence.  Gall, 552 U.S. at 50.  Boucher may or may not be entitled to a downward variance after the district court reweighs the relevant § 3553(a) factors, and it is the district court’s right to make that decision in the first instance.  See United States v. Johnson, 239 F. App’x 986, 993 (6th Cir. 2007) (“This Court takes no position on what an appropriate sentence in this case might be and notes that on remand the district court still retains ample discretion to grant a variance. . . . The narrow reason for remand here is that the extreme nature of the deviation, without a correspondingly compelling justification, resulted in a substantively unreasonable sentence.”).  We therefore VACATE Boucher’s sentence and REMAND for resentencing.

I have long hoped for a mre robust and searching form of reasonableness review, but I continue to find that courts are much more interested in seriously questioning 30-day sentences when prosecutors appeal than in questioning 30-year sentences when defendants appeal.  And so it goes in incarceration nation.

September 9, 2019 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Feds recommending incarceration terms from 1 to 15 months for parents involved college bribery scandal

Late Friday night, sentencing memoranda were filed in the run up to highest-profile scheduled sentencings of a number of the parents involved in the college bribery scandal.  This ABC News report overviews the basics:

Federal prosecutors are recommending some period of incarceration for the parents in the college admissions scandal.... The government's sentencing memorandum refers to the college admissions scandal as "a kind of Rorschach test for middle class angst about college admissions." The government says some period of incarceration is the only meaningful sanction for these crimes.

Court documents showed prosecutors recommended jail time ranging from one month to 15 months for the defendants named in the memo.  Of the local parents who pleaded guilty to conspiracy to commit mail fraud and honest services mail fraud, Napa Vinyard Owner Agustin Huneeus is facing the longest sentencing recommendation at 15 months. Huneeus paid Rick Singer $300,000 participate in both the college entrance exam cheating scheme and the college recruitment scheme for his daughter.

Next is Marjorie Klapper of Menlo Park with a recommended sentence of four months. Klapper paid Singer $15,000 to participate in the college entrance exam cheating scheme for her son. Peter Sartorio of Menlo Park is facing a recommendation of just one month.  Sartorio agreed to pay Singer $15,000 to participate in the college entrance exam cheating scheme for his daughter.  Actress Felicity Huffman is also facing a one-month recommended sentence. 

The government says they considered the amount of the bribe, whether someone was a repeat player, an active or passive participant in the scheme and whether or not they involved their children.

I had been hoping that the US Attorney's Office in Massachusetts, which has this useful webpage with indictments, plea agreements and other documents publicly available, would also post the government's full sentencing memorandum. So far, all that is posted is a listing of the "Government Sentencing Recommendation" in each case. 

Of course, the defendant receiving the most attention in the press is actress Felicity Huffman, and here is a partial round-up of stories focused on the sentencing recommendations in her case and related matters:

Prior related posts:

September 9, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, September 05, 2019

Gearing up for the federal sentencing of Felicity Huffman and others involved in college bribery scandal

Just over a week before the highest-profile sentencing of the bunch, USA Today has this lengthy review of federal sentencing realities and prospects for a range of defendants involved in the college bribery scandal.  The piece if headlined "Felicity Huffman to kick off sentencing of parents in college admissions case: Will judge 'send a message?'," and merits a read in full.  Here are a few excerpts:

The Justice Department suffered a setback in June when the first defendant sentenced in the nation's college admissions scandal, a former Stanford University sailing coach, avoided any prison time.  The prosecution soon has an opportunity to rebound as the historic "Varsity Blues" case enters a critical new phase.

Parents who pleaded guilty to paying Rick Singer, the mastermind of a nationwide college admissions cheating and bribery scheme, are set to be sentenced, beginning next week. Fifteen parents, three college coaches and two other co-conspirators of Singer are to be sentenced this fall.

First up is one of the two celebrities charged in the sweeping case: actress Felicity Huffman, whose sentencing is set for Sept. 13.  In a deal with prosecutors, Huffman pleaded guilty in May to conspiracy to commit mail fraud and honest services mail fraud for paying Singer $15,000 to have someone correct her daughter's SAT answers.

At the time of her plea, prosecutors recommended four months in prison for the "Desperate Housewives" actress, substantially lower than the maximum 20 years the charges could carry.  They recommended 12 months of supervised release, a $20,000 fine and other undetermined amounts of restitution and forfeiture....

If Huffman and the parents who follow her in court also avoid prison time, some criminal justice advocates said, it would signal to the public that the rich and connected can get away with cheating the system. “The criminal scheme carried out in this case shocks the conscience and underscores the way in which wealthy people can exploit their privileged status to their benefit and to the detriment of others," said Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law. "These federal crimes must not be treated lightly in order to send a strong message that no one is above the law and that wealthy people will be held accountable."

Clarke said the crimes committed by parents in the case "undermine public confidence" in the college admissions process and show universities must "redouble their efforts" to ensure diversity on campuses. She noted most of the wealthy parents who participated in the scheme are white.  She called the case a "unique opportunity" to hold accountable individuals "who feel that money, race and privilege can allow them to evade the justice system."

Of the 51 people charged in the college admissions scandal, 34 are parents accused of making significant payments to Singer's sham nonprofit group, the Key Worldwide Foundation.  Prosecutors said they paid to have someone secretly take ACT or SAT tests for their children, change poor results or get them falsely tagged as athletic recruits to get them into college.

Huffman was originally scheduled to be the third parent sentenced in the case, but the sentencing hearings of two other parents who pleaded guilty, Devin Sloane and Stephen Semprevivo, were pushed back to later this month.

The delays will allow U.S. District Judge Indira Talwani, who presides over the cases of Huffman and other parents, to hold a hearing Tuesday on a legal dispute that could determine the severity of some sentences.  The judge will consider whether to listen to probation officers, who identified no financial losses to any victim in the case, which could mean lighter sentences for many parents.  Prosecutors object to the potential lighter sentencing guidelines and do not want Talwani to confer with the probation department in the admissions case....

Both sides are likely to file sentencing memos to the court that will make final arguments and sentencing recommendations to Talwani before next week's hearings. "If there isn't at least a request for a strong sentence, even if it isn't granted, then I think it would seem like there's sort of different justice for different people," said Carl Tobias, a law professor at the University of Richmond who specializes in federal courts.  "I do think they will continue to press," he said of the prosecution, "and part of it is to make an example that everybody ought to be equal before law and this is not appropriate behavior."

Because no parents have been sentenced to date in the admissions scandal, Tobias said it's tricky to predict what's in store for Huffman and those sentenced after her. "We'll see what arguments are made and how her defense attorney frames it. That could be important," he said.  "And, if Huffman has more to say that may account for something, too."

Huffman, 56, apologized to the "students who work hard every day to get into college." She fought back tears when she pleaded guilty in court.  One fact that may play in her favor is the substantially lower amount of money she paid compared with other parent defendants.  Singer typically charged parents $15,000 to carry out the test cheating and higher amounts to pay off college coaches to get their children admitted as athletic recruits.  The latter cost more because it guaranteed a child's entry into college.

Sloane, CEO of Los Angeles-based waterTALENT, which builds water systems, pleaded guilty to paying $250,000 in bribes to Singer's organization to falsely designate his son as a water polo player so he could gain acceptance to the University of Southern California. Prosecutors recommended he serve 15 to 21 months in prison.  Semprevivo, an executive at Cydcor, a privately held provider of outsourced sales teams, pleaded guilty to paying $400,000 to Singer to get his son admitted into Georgetown University as a fake tennis recruit. Prosecutors recommended a prison sentence of 18 months for him....

The sentence for Vandemoer, the ex-Stanford sailing coach, was decided by U.S. District Judge Rya Zobel.  She presides over Singer's case but is not assigned to any of the cases involving parents or other coaches. Singer pleaded guilty to four felonies and is cooperating with prosecutors.  Although prosecutors didn't get the sentence they wanted for Vandemoer, the case doesn't necessarily foreshadow how the next round of sentences will go. As part of an agreement with prosecutors, Vandemoer pleaded guilty to racketeering charges.

The case had unique circumstances.  None of the students tied to the payments was admitted into Stanford as a direct result of the coach's actions, leading Zobel to question whether the university suffered any losses.  Vandemoer funneled payments directly to the school's sailing program and did not pocket any of the bribe money he took from Singer. Zobel called Vandemoer "probably the least culpable of all the defendants."

Twenty-three defendants in the college admissions case, including Huffman, pleaded guilty to felonies; 28 others pleaded not guilty, including actress Lori Loughlin.  How the first group of parents is sentenced could affect whether other parents plead guilty or dig in for trial, according to Adam Citron, a former state prosecutor in New York, who practices at Davidoff Hutcher & Citron.

That's the biggest concern for prosecutors, he said. "It could go two ways. If (the parents) are getting jail time even on pleas, a defendant may think to themselves, 'I better plea out because I don't want more jail time,' " Citron said. "By the same token, that defendant might say to themselves, 'I'm going to get jail anyways, so I might as well fight it.' "

Prior related posts:

September 5, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, White-collar sentencing, Who Sentences | Permalink | Comments (2)

Tuesday, August 27, 2019

Yet another great set of new Quick Facts publications from US Sentencing Commission

I am always eager to praise the US Sentencing Commission for continuing to produce a steady stream of its insightful little data documents in its terrific series of reader-friendly "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").  In this post four week ago, I noted a whole bunch of new Quick Facts released in July 2019.  I now see the USSC has this month released a bunch more Quick Facts on a lot of major federal sentencing topics based on the USSC's recently released 2018 fiscal year data.  Here are these newer releases:

Sentencing Issues

Offender Groups

Immigration

Economic Crime

Other Chapter Two Offenses

August 27, 2019 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (0)

Wednesday, August 07, 2019

"A Partial Fix of a Broken Guideline: A Proposed Amendment to Section 2G2.2 of the United States Sentencing Guidelines"

The title of this post is the title of this notable new article now available via SSRN and authored by Brent Evan Newton. Here is its abstract:

Except for the federal criminal penalties for crack cocaine offenses, no specific non-capital penalty structure has been more widely criticized than USSG § 2G2.2 and the corresponding federal penal statutes, 18 U.S.C. §§ 2252 & 2252A. Together, those provisions govern penalties for child pornography offenses other than those involving actual production of child pornography.  Indeed, one of the leading sources of criticism has been the United States Sentencing Commission, whose 300-plus-page report to Congress in December 2012 made a compelling case for changing both the guideline and, to a lesser degree, the statutes.

The current sentencing guideline for non-production offenses is fundamentally broken, as evidenced by the fact that only 28.4 percent of defendants sentenced under section 2G2.2 receive within-range sentences and 69.1 percent of defendants receive downward variances or departures (unrelated to their substantial assistance or participation in a fast-track program).  The vast majority of child pornography defendants receive downward variances from their guideline ranges based on sentencing judges’ subjective senses of what appropriate sentences should be.  Because judges have no meaningful national benchmark from which to render sentencing decisions, widespread sentencing disparities exist -- in conflict with the central purpose of the Sentencing Reform Act of 1984. In addition, because the current guideline fails to offer any meaningful benchmark, federal prosecutors around the country engage in a wide variety of different charging and plea-bargain practices resulting in significant sentencing disparities among similar defendants.

Although the best solution to the problems with the current child pornography sentencing scheme would require congressional intervention, Congress appears unwilling to make any changes in the statutory handcuffs currently on the Commission.  Therefore, I have set forth a detailed proposed amendment to section 2G2.2 that could be adopted by the Commission without congressional authorization.  If the Commission does not amend the guideline, then my proposal provides a detailed roadmap for federal district judges to “vary” from the current, broken guideline pursuant to the authority granted by the Supreme Court in United States v. Booker and Kimbrough v. United States.

August 7, 2019 in Booker in district courts, Federal Sentencing Guidelines, Sex Offender Sentencing, Who Sentences | Permalink | Comments (1)

Friday, August 02, 2019

Federal circuit judge laments at lengthy how plain error review now works for guideline errors

A helpful reader made sure I did not miss the concurring opinion authored by Fifth Circuit Judge Oldham this week in US v. Del Carpio Frescas, No. 17-50245 (5th Cir. July 29, 2019) (available here). The Fifth Circuit panel vacated a sentence on plain error review based on a small guideline calculation problem. Judge Oldham seems quitr grumpy that applicable SCOTUS precedent required this reversal, and he authors a 20-page concurrence to explain why. That opinion starts this way:

Today’s result might surprise the uninitiated: Based on a one-point offense-level miscalculation in the advisory Guidelines, the United States must restart its criminal-justice machinery so it can fix a mistake that’s supposedly so “plain” it cannot be ignored but also so subtle that del Carpio ignored it below.  This result is particularly surprising because, not so long ago, the Supreme Court told us that “[m]eeting all four prongs of [plain-error review] is difficult, as it should be.” Puckett v. United States, 556 U.S. 129, 135 (2009).  But this case illustrates it’s no longer that difficult.  So I agree current Supreme Court precedent requires that del Carpio be resentenced.  I write separately to explain how we got here.

August 2, 2019 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Thursday, August 01, 2019

Another round of great new Quick Facts publications from US Sentencing Commission

I am always eager to praise the US Sentencing Commission for continuing to produce a steady stream of its insightful little data documents in its terrific series of reader-friendly "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"). And I have recently seen that there are a number of new Quick Facts on a lot of major federal sentencing topics based on the USSC's recently released 2018 fiscal year data. Here are some these newer publications:

Drugs

Firearms

Offender Groups

August 1, 2019 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines | Permalink | Comments (0)

Wednesday, July 31, 2019

The long legacy of drug wars: Eighth Circuit panel affirms LWOP sentence for drug dealer as reasonable

As long-time readers likely realize, I do not blog much these days about how federal circuit courts are conducting reasonableness review of sentences — largely because there are precious few cases in which circuit judges seriously question (or even seriously engage with) the sentencing judgments of district courts.  A helpful reader alerted me to a reasonableness review decision from the Eighth Circuit today which provides another example of how disinclined circuit courts are to question even the most extreme prison sentences.

US v. Duke, No. 18-1371 (8th Cir. July 310, 2019) (available here), involves the appeal after a resentencing of a man originally sentenced three decades ago.  Back then, arguably at the height of the modern drug war, "Ralph Duke was sentenced in 1990 to a term of life imprisonment plus forty years for committing several serious drug trafficking and firearms offenses."   Here is a description of Duke's crimes from this latest opinion:

Duke controlled all phases of a drug trafficking organization in the Minneapolis/St. Paul area from 1984 through June 1989.  He purchased cocaine primarily from a Colombian-affiliated source in Houston or from sources in Los Angeles.  The cocaine was transported to Minnesota in vehicles owned by Duke and driven by younger members of his drug trafficking organization.  Duke then distributed kilograms of cocaine to dealers for resale at the street level in smaller quantities.  Duke laundered the proceeds of drug sales by purchasing homes and cars in the names of others.  All told, Duke and his organization trafficked over fifty kilograms of cocaine before law enforcement interrupted their operations.  When Duke was apprehended in May 1989, officers found two loaded handguns in his bedroom and two assault shotguns and two AR-15 semi-automatic rifles in his residence.  The government charged at least twenty-five people as a result of the investigation of Duke’s organization. 

In other words, Duke was a big-time drug dealer in the 1980s, though it does not appear that he was actively involved in any violent activities or that his case involved other aggravating factors (though I suppose he might be called a drug kingpin).  But back in the 1990s, when the drug war was ranging and the federal sentencing guidelines were mandatory, perhaps it is not surprising that the federal district judge originally imposed an LWOP sentence on Duke.

But fast forward nearly 30 years, and Duke had the chance to benefit from a full resentencing in 2018 due to various legal developments.  Circa 2018, the federal sentencing guidelines were now advisory and, according to Duke, a lower sentence was justified in light of his "exceptional institutional conduct over the last 29 years, lack of criminal history, age, medical history, family ties, rehabilitation, remorse, and low risk of recidivism."  But the same federal district judge was unmoved and decided to give Duke an LWOP sentence yet again.  And the Eighth Circuit panel, in the ruling linked above, decided this LWOP sentence was reasonable.

When Booker was first decided and circuit courts were tasked with reasonableness review based on 18 U.S.C. § 3553(a), I had sincerely hoped appellate judges would come to embrace the task of ensuring sentences were "not greater than necessary to comply with the purposes set forth" by Congress.  But it became all too clear all too quickly that all too few circuit judges were eager to rigorously review long prison sentences, especially if those sentences fell within calculated guideline ranges.  Years later, even with mass incarceration and long sentences for drug offenses subject to considerable criticism, we still see federal judges finding no problem with giving a "death-in-prison" sentence based on drug dealing many decades ago.

July 31, 2019 in Booker in district courts, Booker in the Circuits, Drug Offense Sentencing, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, July 21, 2019

"The Vanishing of Federal Sentencing Decisions"

The title of this post is the title of this notable recent Forbes commentary authored by Brian Jacobs. I recommend the full piece, and here are excerpts:

In civil cases, the most important decisions that federal district judges make typically are recorded in the form of written opinions that are collected in the Federal Supplement, widely available for free online, and available in searchable databases on Westlaw and LexisNexis, among other places.  In criminal cases, by contrast, some of the most important decisions that federal district judges make — regarding what sentences to impose — are, in the vast majority of cases, lost in the ether of PACER, where they are available only to those who know precisely where to look.  This state of affairs is far from ideal for prosecutors, defense attorneys, and district judges, and it is patently unfair for criminal defendants themselves.

The scale of this problem is hard to overstate. Federal district judges make an enormous number of sentencing decisions every year. In the 12-month period ending September 30, 2018, the Administrative Office of the U.S. Courts reported that 71,550 (about 90%) of the 79,704 defendants whose cases were disposed of in federal courts entered guilty pleas, and another 1,559 were convicted at trial.  As a result, in just this single one-year period, the United States Sentencing Commission reported that there were close to 70,000 federal criminal cases in which an offender was sentenced....

District court decisions resolving sentencing disputes are typically delivered orally and memorialized only in the transcript of the sentencing proceeding itself, where judges must “state in open court the reasons for [the] imposition of the particular sentence.”  (See 18 U.S.C. § 3553(c).) (Judges also are required to complete the form entitled “Statement of Reasons.”)  Rarely do judges reduce their sentencing decisions to written opinions.  A Westlaw search of opinions published between October 2017 and September 30, 2018 (the U.S. Sentencing Commission’s last fiscal year) referencing 18 U.S.C. § 3553(a) resulted in approximately 600 federal district court opinions and 1,300 appellate decisions.  Thus, an attorney or defendant trying to research a given Guidelines issue, for example — such as the weight that district judges have given to the loss amount in fraud cases under Section 2B1.1 of the Guidelines in the last year — cannot simply run a Westlaw search in a database of district court cases for “2B1.1.”  Such a search would turn up but a small fraction of the relevant material.

Although not memorialized in written opinions, many federal sentencing proceedings are transcribed by a court reporter, and most of those transcripts are ultimately posted to PACER, an electronic service that allows public access to case and docket information for federal court proceedings for a fee.  Users can conduct simple searches on PACER by party name, judge, or keyword, for example.  Thanks to PACER, a well-heeled defendant could, for example, with substantial effort and expense, pull and review all of the sentencings that have taken place before one particular judge, or that have been handled by one particular prosecutor.  Such a search, however, would again merely scratch the surface of potentially relevant decisions (which are accruing at a rate of 70,000 a year), and would be a cumbersome, expensive, and ineffective way to mine sentencing transcripts for persuasive authority on any particular issue.  PACER does not, unfortunately, allow for searches of the text of posted documents, and there is no other way to perform such a search in a comprehensive way.

It thus remains the case today that despite technological advancements, sentencing decisions are not nearly as readily accessible as other sorts of judicial decisions, and this vanishing of federal sentences serves nobody’s interest.  A defendant facing a sentencing in a federal criminal case — one of the most important days of his or her life — is hampered in his or her ability to effectively research the hundreds of thousands of federal sentencings that have taken place in our country in recent years, any one of which might have the sort of persuasive power that could make a difference.  If this defendant had access to a searchable database of transcripts of the 70,000 sentencings that take place each year in federal district courts, perhaps the defendant would be able to find the handful of on-point and persuasive cases to highlight for the sentencing judge.  In addition, perhaps the defendant could identify and highlight trends in sentencings around the country that, in the aggregate, would persuade the sentencing court to exercise its large amount of discretion in a particular way. Because the widespread availability of federal sentencing transcripts would benefit prosecutors, defendants, and judges alike, there is a long-term need for a readily accessible searchable database of transcripts of all federal sentencings, capable of handling complex queries....

[I]t is well past time for a searchable database of federal sentencing transcripts similar to the database of district court opinions available on Westlaw and LexisNexis.  The availability of such transcripts is important to ensure, among other things, that all criminal defendants, regardless of resources, are able to present effective sentencing arguments.

July 21, 2019 in Data on sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (2)

Thursday, July 18, 2019

US Sentencing Commission begins new "Research Notes" publication

At a time of great interest and great change in the federal sentencing system, the US Sentencing Commission for many years now has lacked a full complement of Commissioners.  And throughout 2019, because there are only two Commissioners in place, the USSC lacks a quorum needed to do any "official" work involving changes to the federal sentencing guidelines.  But the USSC staff clearly remains hard at work with the regular production of research reports.  And, as detailed on this webpage, the USSC is now producing a new set of research documents:

RESEARCH NOTES

Research Notes give background information on the technical details of the Commission’s data collection and analysis process. They are designed to help researchers use the Commission’s datafiles by providing answers to common data analysis questions.

Research Notes

  • Issue 1: Collection of Individual Offender Data This first edition of Research Notes explains how the Commission collects and analyzes sentencing information, and describes the Commission’s many datafiles. (Published July 17, 2019)

July 18, 2019 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Monday, July 01, 2019

Urging US Sentencing Commission to "undertake a top-to-bottom review" of harsh federal sentencing guidelines

I am very pleased to see US District Judge Lynn Adelman taking to the pages of the Washington Post to pen this new opinion piece under the headline "There’s another tough-on-crime law Democrats should focus their criticism on." I recommend the piece in full, and here are excerpts:

Some of the Democratic presidential candidates have criticized the tough-on-crime legislation enacted during the 1980s and 1990s, arguing that it contributed to the mass incarceration that shames the country today.  The candidates and other critics have focused on the 1994 crime bill, which provided incentives for states to build more prisons and impose longer sentences, and the 1986 Anti-Drug Abuse Act, which established harsh sentences for drug offenses, particularly those involving crack cocaine.

The criticism of these provisions is entirely justified.  But not enough attention has been paid to another 1980s-era tough-on-crime law that is still very much with us, causing substantial unnecessary incarceration, particularly of African Americans and Hispanics: the 1984 Sentencing Reform Act.

Among its “reforms,” the law eliminated parole for federal offenders and created the U.S. Sentencing Commission that then promulgated the Federal Sentencing Guidelines.  The act, the commission and the guidelines have been a disaster, and a debate by lawmakers about their status is long overdue.  As a result of the sentencing guidelines, as well as sentencing practices in state courts, the United States is now an outlier not just among democracies but among all nations....

The commission established harsh sentencing guidelines and barred judges from putting defendants on probation except in rare instances.  Over the next 20 years, the commission regularly amended the guidelines, making them even more severe.

The average federal sentence increased from 28 to 50 months afterward and, with the abolition of parole, the average time that a defendant served increased from 13 to 43 months....   Between 1987 and 2019, the federal prison population increased from about 50,000 to 219,000 before dropping to about 180,000.  In 2005, with the landmark decision in United States v. Booker, the Supreme Court struck down the mandatory feature of the guidelines, giving judges the opportunity to establish a less punitive sentencing regime.  In subsequent decisions, the court made clear that judges had no obligation to follow the guidelines.

Unfortunately, district court judges have largely failed to take advantage of Booker to ameliorate the harshness of the federal sentencing system.  After Booker, judges slightly reduced the length of sentences, from 47.9 months in fiscal 2003, to 44 months in 2018.  Shockingly, the number of offenders receiving prison-only sentences actually increased, from 83.3 percent in fiscal 2003 to 87.8 percent in fiscal 2018.  The sentencing commission could lead the way in pressing judges to take Booker to heart, given the commission’s considerable authority regarding federal sentencing policies, but it has provided little leadership.  For too long, the commission has focused instead on trying to minimize inter-judge disparities in sentencing.

The commissioners might better understand the impact of its policies if they ventured outside Washington and held public hearings in urban and rural America about federal sentencing guidelines.  Hearing firsthand about the devastating effect on families of the United States’ punitive approach, particularly in drug cases, might open some commissioners’ eyes.

Ideally, the commission would then undertake a top-to-bottom review of the guidelines, with an eye toward recommending as many noncustodial sentences as possible and reducing the length of prison sentences.  Putting a dent in federal mass incarceration would set an example for state correctional systems.

In fairness, the commission in recent years has taken some important steps in the right direction.  Particularly significant was its 2014 decision to reduce all drug guidelines by two levels and to make the policy retroactive, thereby reducing sentences for some 32,000 prisoners.  Congress’s recently enacted First Step Act was another move in the right direction, addressing the disparity in punishment for offenses involving crack and powder cocaine. But more needs to be done to reset a system that has done untold harm over the past three decades.  At a minimum, the Sentencing Reform Act should be substantially revised.  Congress was foolish to have abolished parole and should overturn that decision.

This commentary provides a terrific and needed reminder that the Booker decision did not considerably mute the punitive impact of harsh sentencing guidelines (even though I think it has tended to considerably mute the amount of criticism of these guidelines). As mentioned in this post last week, right now the US Sentencing Commission is unable to function fully because it only has two of seven Commissioner slots filled. So "public hearings in urban and rural America" in conjunction with a "top-to-bottom review" of the guidelines cannot really happen unless and until we get a slate of new Commissioners with an interest in such an agenda. I hope this piece gets those folks in the campaigns and on Capitol Hill who are really committed to criminal justice reform to be thinking about the potential that a reform-oriented Commission might have.

July 1, 2019 in Campaign 2020 and sentencing issues, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, June 27, 2019

US Sentencing Commission releases "Overview of Federal Criminal Cases, Fiscal Year 2018"

Though the US Sentencing Commission cannot currently make any guideline amendments due to the lack of a quorum due to a lack of Commissioners, the Commission is still able to churn out federal sentencing data and produce helpful reports about that data.  One such helpful report released this week, and available here, is titled simply "Overview of Federal Criminal Cases, Fiscal Year 2018," and the USSC describes and summarizes the report on this webpage in this way: 

Summary

The United States Sentencing Commission received information on 69,524 federal criminal cases in which the offender was sentenced in fiscal year 2018.  Among these cases, 69,425 involved an individual offender and 99 involved a corporation or other “organizational” offender.  The Commission also received information on 3,241 cases in which the court resentenced the offender or otherwise modified the sentence that had been previously imposed.  This publication provides an overview of those cases.

Highlights

A review of cases reported to the Commission in fiscal year 2018 reveal the following:

  • The federal caseload increased 3.8% from the previous fiscal year, halting a six-year decline in the number of federal offenders sentenced annually.
  • Cases involving drugs, immigration, firearms, and fraud, theft, or embezzlement accounted for 82.8% of all cases reported to the Commission.
  • Immigration cases were the most common federal crimes in fiscal year 2018 (34.4%).  This number is a 16.5% increase from fiscal year 2017.
  • Drug trafficking offenses fell by 14.1% over the past five years, with 4.5% fewer cases reported than in fiscal year 2017.
  • Methamphetamine offenses were the most common drug cases.  The 7,554 methamphetamine cases represented 39.8% of all drug crimes.

June 27, 2019 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (0)

Wednesday, June 12, 2019

Federal district judge rejects feds request for significant prison term in first sentencing of college bribery scandal

As reported in this NBC News piece about the first sentencing in a high-profile federal criminal matter, "Stanford University's former sailing coach avoided significant prison time and was sentenced to just one day behind bars on Wednesday for his role in a massive college admissions scandal."  Here is more:

John Vandemoer was the first person to be sentenced in the sweeping corruption scandal that exposed the sophisticated network of college admissions ringleader William Rick Singer, who helped children of well-heeled clients cheat their way into elite universities.

U.S. District Court Judge Rya W. Zobel sided with defense lawyers who said their client should not get more than the one day, which the judge dismissed as time served. The government had asked the judge to sentence Vandemoer to 13 months in prison.

Before Wednesday, Vandemoer had already pleaded guilty to one count of racketeering conspiracy for accepting $770,000 in bribes in funds that all went into the school's sailing program. The money did not directly line Vandemoer's pockets, the judge and lawyers on both sides agreed. "From what I know about the other cases, there is an agreement that Vandemoer is probably the least culpable of all the defendants in all of these cases," Zobel said. "All the money he got went directly to the sailing program."

In court on Wednesday, Vandemoer's voice choked with emotion as apologized for his actions. "I want to be seen as someone who takes responsibility for mistakes," he said. "I want to tell you how I intend to live from this point forward. I will never again lose sight of my values."...

Vandemoer received three separate payments of $500,000, $110,000 and $160,000 between fall 2016 and October 2018 on behalf of the Stanford sailing program to falsely represent that three clients of Singer's were elite sailors — and thus deserving of special admission to the private school, according to court documents....

Assistant U.S. Attorney Eric Rosen pleaded with Judge Zobel to send Vandemoer to prison and send a message about the case. "The sentence that you impose will set the tone moving forward," Rosen said. The prosecutor added: "This case goes far beyond John Vandemoer. The damage on Stanford goes much further. The actions undermine the confidence in the college admissions process."

The defense asked for leniency, arguing that the money Vandemoer received didn't go into his pocket, but instead went to a fund that supported Stanford's sailing program. "It cannot be overstated: all parties agree that Mr. Vandemoer did not personally profit from the scheme," defense lawyer Robert Fisher wrote in his sentencing memo to the court. "Mr. Singer sent Mr. Vandemoer money, and he consistently turned that money over to Stanford."...

Zobel also sentenced Vandemoer to two years of supervised release and six months of home confinement. The former coach was also fined $10,000. "I am aware that these are serious offenses," Zobel said. "I find it hard in this case that Vandemoer should go to jail for more than a year."

Of the three students whose parents tried to bribe their way into Stanford, none them actually benefited from Singer and Vandemoer's scheme.  The first one's fake sailing application came too late in the recruiting season and "the student was later admitted to Stanford through the regular application process," according to prosecutors.  The next two opted to go to Brown University and Vanderbilt University, despite Vandemoer's help.

Vandemoer was fired by Stanford on March 12, hours after federal prosecutors unsealed indictments.  "Although Mr. Vandemoer's conduct resulted in donations to the Stanford sailing team, Stanford views those funds as tainted," according to a victim impact statement written to Judge Zobel by Stanford's general counsel, Debra Zumwalt. "Stanford takes no position regarding any specific sentence that this Court may impose."

Because Vandemoer does not pose any real threat to public safety, and because he has already suffered (and will continue to suffer) an array of formal and informal collateral consequences, this sentence certainly strikes me as "sufficient, but not greater than necessary, to comply with the purposes set forth" in federal sentencing law.  I suppose I am not surprised that the feds wanted a significant prison term in this first of many related sentencings, but the recommendation here of 13 months in prison is a reminder that the feds seem to think that just about every convicted defendant ought to be sent to prison for some significant period.

June 12, 2019 in Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (2)

Sunday, June 09, 2019

"The Orwell Court: How the Supreme Court Recast History and Minimized the Role of the U.S. Sentencing Guidelines to Justify Limiting the Impact of Johnson v. United States"

The title of this post is the title of this article recently posted to SSRN and authored by Brandon Beck. Here is its abstract:

In recent years, federal criminal defendants have enjoyed great success in challenging “residual clauses” within the United States Code as unconstitutional. This began in 2015 when the United States Supreme Court, in Johnson v. United States, struck a portion of the Armed Career Criminal Act as void for vagueness.  Johnson’s holding at first appeared monumental because it invalidated a provision commonly used to enhance the prison sentences of offenders with certain qualifying prior convictions.  Subsequent developments, however, significantly dulled the impact of Johnson, thwarting the dramatic reduction in sentences it once foreshadowed.

This Article is about how Johnson came to be and the mechanisms through which the Supreme Court has subsequently weakened Johnson’s effect.  It will describe two specific mechanisms: (1) the Supreme Court’s recasting of the history of federal sentencing in an attempt to contextualize the holding of Booker v. United States as a return to the bygone days of indeterminate sentencing; and (2) the Supreme Court’s evolving view of the role of the United States Sentencing Guidelines (Guidelines) in the federal criminal system that minimizes the Guidelines’ actual influence over a district court’s sentencing decisions.  It will then explain why these mechanisms — one that exerts control over the past and one that exerts control over the present — are both unfounded.  Finally, this Article will suggest ways in which those involved in federal criminal law — the United States Sentencing Commission (Sentencing Commission), Congress, the courts, and the criminal bar — can address the problems that the Court’s recent decisions have caused in our criminal justice system.

June 9, 2019 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (0)

Friday, June 07, 2019

US Sentencing Commission releases data report on resentencings pursuant to Section 404 of the First Step Act of 2018 (making retroactive provisions of the Fair Sentencing Act of 2010)

I was very pleased to receive in my email in-box this afternoon news that the US Sentencing Commission has released this short new report titled "First Step Act of 2018 Resentencing Provisions Retroactivity Data Report."  Here is how the 10-page report was summarized via the email:

Summary

The U.S. Sentencing Commission published new information on resentencings pursuant to Section 404 of the First Step Act of 2018 (enacted December 21, 2018).

Defendants sentenced before the effective date of the Fair Sentencing Act of 2010 (August 3, 2010) who did not receive the benefit of the statutory penalty changes made by that Act are eligible for a sentence reduction under Section 404 of the First Step Act.

Data Highlights [FN1]

    • 1,051 motions were granted for a reduced sentence.
    • 78.9% of granted motions were made by the defendant, 11.8% by the attorney for the government, and 9.3% by the court.
    • Offenders received an average decrease of 73 months (29.4%) in their sentence.
      • The original average sentence was 239 months.
      • The new average sentence was 166 months.

[FN1] The data report includes motions granted through April 30, 2019 and for which court documentation was received, coded, and edited at the U.S. Sentencing Commission by May 17, 2019.

Importantly, the FSA retroactivity provision of the FIRST STEP Act was only a small piece of the legislation, and yet this report shows it already has had a big impact.  Specifically, within just over four months, this part of the FIRST STEP Act has shortened more than 1000 sentences by an average of over 6 years. With six thousand years(!) of extra prison time (and taxpayer expense) saved, this report shows that even a modest reform can have a very big impact for some folks.

June 7, 2019 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, FIRST STEP Act and its implementation | Permalink | Comments (1)

Thursday, June 06, 2019

En banc Sixth Circuit finds invalid an application note used to expanded the reach of "controlled substance offense" priors

In this post last year, I flagged an interesting split Sixth Circuit panel opinion on the reach of a particular important guideline provision, and that case has now led to this notable short per curiam en banc ruling in US v. Havis, No. 17-5772 (6th Cir. June 6, 2019) (available here). The ruling starts this way:

Although it is neither a legislature nor a court, the United States Sentencing Commission plays a major role in criminal sentencing. But Congress has placed careful limits on the way the Commission exercises that power. Jeffery Havis argues that the Commission stepped beyond those limits here and, as a result, he deserves to be resentenced. We agree and REVERSE the decision of the district court.

Here are the basic particulars:

In 2017, Havis pled guilty to being a felon in possession of a firearm.  See 18 U.S.C. § 922(g)(1).  Under the Sentencing Guidelines, a person convicted under § 922(g)(1) starts with a base offense level of 14; but that level increases to 20 if the defendant has a prior conviction for a “controlled substance offense.” ...

The question before the court, then, is whether the definition of “controlled substance offense” in § 4B1.2(b) includes attempt crimes.  The Sentencing Commission said it does in the commentary to § 4B1.2(b).  See USSG § 4B1.2(b) comment (n.1).  But the plain language of § 4B1.2(b) says nothing about attempt crimes.  On appeal, Havis maintains that we must look to the actual text of Guideline § 4B1.2(b).  The Government asks us to defer to the Commission’s commentary.....

To make attempt crimes a part of § 4B1.2(b), the Commission did not interpret a term in the guideline itself — no term in § 4B1.2(b) would bear that construction.  Rather, the Commission used Application Note 1 to add an offense not listed in the guideline.  But application notes are to be “interpretations of, not additions to, the Guidelines themselves.”  Rollins, 836 F.3d at 742. If that were not so, the institutional constraints that make the Guidelines constitutional in the first place — congressional review and notice and comment — would lose their meaning. See Winstead, 890 F.3d at 1092 (“If the Commission wishes to expand the definition of ‘controlled substance offenses’ to include attempts, it may seek to amend the language of the guidelines by submitting the change for congressional review.”). The Commission’s use of commentary to add attempt crimes to the definition of “controlled substance offense” deserves no deference.  The text of § 4B1.2(b) controls, and it makes clear that attempt crimes do not qualify as controlled substance offenses.

The Guidelines’ definition of “controlled substance offense” does not include attempt crimes. Because the least culpable conduct covered by § 39-17-417 is attempted delivery of a controlled substance, the district court erred by using Havis’s Tennessee conviction as a basis for increasing his offense level. We therefore REVERSE the district court’s decision and REMAND for further proceedings consistent with this opinion.

June 6, 2019 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Saturday, May 11, 2019

New issue of Crime and Justice covers "American Sentencing — What Happens and Why?"

I just received an email reporting that the latest issue of Crime and Justice is in print, and all sentencing fans will want to get access to this volume. This issue has 10(!) amazing articles put together by editor Michael Tonry around the topic of "American Sentencing — What Happens and Why?." Here is the list of titles and authors (and clicking through here enables seeing abstracts for each):

May 11, 2019 in Federal Sentencing Guidelines, Recommended reading, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Wednesday, May 08, 2019

US Sentencing Commission (finally) releases 2018 Annual Report and Sourcebook of Federal Sentencing Statistics

Via email, I received this morning this notice from the US Sentencing Commission about the publication of lots of new federal sentencing data:

Newly Released Sentencing Data

Today the U.S. Sentencing Commission published its 2018 Annual Report and Sourcebook of Federal Sentencing Statistics. 

The Annual Report presents an overview of the Commission's work in fiscal year 2018. The Sourcebook was expanded this year to include more analyses of drug and immigration offenses, as well as new sections on firearms and economic offenses to give readers more complete information about the most frequently occurring federal crimes. 

The Sourcebook contains information collected from 321,000 federal sentencing documents on 69,425 federal offenders. 

Quick Highlights

  • The federal sentencing caseload increased by 2,552 cases from fiscal year 2017, representing the first increase since fiscal year 2011.

  • Immigration offenses accounted for the largest single group of federal crime — a position held by drug offenses in fiscal year 2017.

  • Immigration offenses increased from 30.5% in fiscal year 2017 to 34.4% in fiscal year 2018 while drug and firearms offenses decreased.  

  • Methamphetamine offenses, the most common drug type in the federal system, continued to rise (up from 30.8% of drug offenses in fiscal year 2016 and 34.6% in fiscal year 2017 to 39.8% in fiscal year 2018).

  • 75% of federal offenders were sentenced under the Guidelines Manual in fiscal year 2018.

Interestingly, as reveled by this prior post, these annual materials were released by the USSC last year in early March.  I presume the government shutdown and the lack of commissioners has something to do with these data coming out a few months later this year.  I am hopeful it will not take me a few months to find a few data stories to highlight from these latest USSC documents, and I welcome the help of readers to identify just how the Trump era is now looking through the lens of federal sentencing statistics.

May 8, 2019 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, May 02, 2019

Summer sentencing (with notable particulars) for first college admission scandal parents to enter pleas in court

This Los Angeles Times article, headlined "Bay Area couple first to plead guilty in college admissions scandal," reports on a huge high-profile federal fraud case now getting ever closer to sentencing for one pair of defendants. Here are the details:

A Northern California couple who secured their daughters’ spots at UCLA and USC with bribes and rigged tests pleaded guilty Wednesday to fraud and money laundering offenses, the first parents to admit their guilt before a judge in an investigation that has sent shivers through circles of Silicon Valley, Wall Street, Hollywood and some of the country’s most elite universities.

Davina Isackson of Hillsborough, Calif., pleaded guilty to one count of fraud conspiracy. Her husband, real estate developer Bruce Isackson, pleaded guilty to one count of fraud conspiracy, one count of money laundering conspiracy and one count of conspiracy to defraud the United States. They will be sentenced July 31. In Davina Isackson’s plea agreement, prosecutors recommended a sentence at the low end of federal guidelines that call for 27 to 33 months in prison. For Bruce Isackson, they suggested a sentence at the low end of 37 to 46 months in prison.

Of the 33 parents charged in the investigation, the Isacksons are the only ones to have signed cooperation deals with prosecutors. If prosecutors decide the couple provided useful and credible information, they can recommend that a judge sentence them below the federal guidelines.

Investigators want to learn from the couple who at UCLA and USC knew of an alleged recruiting scheme they used to slip their two daughters into the universities as sham athletes, The Times has reported. The Isacksons’ older daughter, Lauren, was admitted to UCLA as a recruited soccer player, given a jersey number and listed on the team roster as a midfielder for an entire season, despite never having played the sport competitively, prosecutors alleged.

To ensure she got in, they said, her parents transferred $250,000 in Facebook stock to the foundation of Newport Beach college consultant William “Rick” Singer, which Bruce Isackson later wrote off on the couple’s taxes as a charitable gift....

The Isacksons tapped Singer’s “side door” the following year to have their younger daughter admitted to USC as a recruited rower, prosecutors alleged. The couple also availed themselves of Singer’s test-rigging scheme, prosecutors said, in which he bribed SAT and ACT administrators to turn a blind eye to his 36-year-old, Harvard-educated accomplice.

With the help of the accomplice, Mark Riddell, the Isacksons’ younger daughter scored a 31 out of 36 on the ACT, prosecutors said. Her father paid Singer’s foundation $100,000 and wrote it off on taxes as a charitable gift.

I find notable that federal prosecutors think that two+ years of imprisonment is necessary for one of these the Isacksons and that three+ years is necessary for the other in accord with guideline calculations. But, because it appears that these defendants may be providing "substantial assistance," the feds may ultimately be recommending lower sentences as a kind of compensation for this kind of cooperation.

Prior related posts:

May 2, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (4)

Monday, April 29, 2019

"Booker Circumvention? Adjudication Strategies in the Advisory Sentencing Guidelines Era"

The title of this post is the title of this notable new paper authored by Mona Lynch and now available via SSRN.  Here is its abstract:

This article addresses the question of policy circumvention in federal courts by examining how legal actors have differentially adapted their adjudicatory practices after U.S. v. Booker (2005) rendered the federal sentencing guidelines advisory rather than mandatory.  By linking two distinct bodies of scholarship — the courts-as-communities scholarship that assesses and explains locale-based variations in criminal court operations and the socio-legal “law and organizations” scholarship that addresses how organizational actors translate and implement top-down legal policy reforms — this article argues that law-as-practiced is always temporally and spatially contingent.

Expanding on prior quantitative research that addresses district-specific adaptations to Booker, this article reports on findings from a qualitative study recently conducted by the author of four federal districts.  Based on these findings, this article examines within-district changes and between-district variations in: (1) legal actors’ perceptions of whether the Booker policy change impacted local practices and outcomes, and if so, the extent of its impact; (2) how legal strategies and practices have changed at three stages of the criminal process: charging, pre-conviction plea negotiations, and formal sentencing; and (3) interviewees’ perceptions about whether Booker contributed to greater racial or other disparities in case out-comes.

Findings indicate that a dynamic, proactive adaptation process is taking place, conditioned by local norms but not fully dictated by those norms.  They also make clear that changes in sentencing outcomes in the post-Booker period are not simply the result of liberated judges exercising their discretion, but rather are jointly produced by courtroom workgroup members through both contestation and cooperation.  This inquiry is especially timely given both ongoing and proposed changes in federal sentencing policy that aim to maintain severity in punishment, re-impose constraints on legal actors, and threaten to exacerbate racial and ethnic inequalities in the federal criminal system.

April 29, 2019 in Booker and Fanfan Commentary, Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Monday, April 08, 2019

Big batch of federal plea deals (with relatively low sentencing ranges) in college admissions scandal

This press release from the US Attorney's Office for the District of Massachusetts, headlined "14 Defendants in College Admissions Scandal to Plead Guilty," reports on the latest developments in the highest profile college fraud case I can recall. Here are the basics:

Thirteen parents charged in the college admissions scandal will plead guilty to using bribery and other forms of fraud to facilitate their children’s admission to selective colleges and universities. One coach also agreed to plead guilty.

The defendants were arrested last month and charged with conspiring with William “Rick” Singer, 58, of Newport Beach, Calif., and others, to use bribery and other forms of fraud to secure the admission of students to colleges and universities. The conspiracy involved bribing SAT and ACT exam administrators to allow a test taker to secretly take college entrance exams in place of students, or to correct the students’ answers after they had taken the exam, and bribing university athletic coaches and administrators to facilitate the admission of students to elite universities as purported athletic recruits....

All of the defendants who improperly took tax deductions for the bribe payments have agreed to cooperate with the IRS to pay back taxes.

Plea hearings have not yet been scheduled by the Court. Case information, including the status of each defendant, charging documents and plea agreements are available here.

The charge of conspiracy to commit mail fraud and honest services mail fraud provides for a maximum sentence of 20 years in prison, three years of supervised release, and a fine of $250,000 or twice the gross gain or loss, whichever is greater. The charge of conspiracy to commit money laundering provides for a maximum sentence of 20 years in prison, three years of supervised release, and a fine of $500,000 or twice the value of the property involved in the money laundering. The charge of conspiracy to defraud the United States provides for a maximum sentence of five years in prison, three years of supervised release, and a fine of $250,000. Sentences are imposed by a federal district court judge based upon the U.S. Sentencing Guidelines and other statutory factors.

Though the recitation of statutory maximum sentence sounds really serious, clicking through to the plea agreements reveals that the relatively low dollar amounts in these frauds entails relatively low guideline sentencing ranges. Specifically, for Felicity Huffman the government calculates in the plea agreement a guideline range at offense level 9 to result in a sentence range of 4 to 10 months. Notably, Huffman disputes the amount of "loss or gain" in her offense and suggests her guideline sentencing range is only 0 to 6 months.  And, significantly, the government agrees to advocate for only the low end of its calculated range, so it will be seeking only a four month sentence for Huffman.

I have not yet had a chance to look though all the other plea agreements, but I would guess their terms are comparable.  And especially because all these defendants are already suffering (and will continue to suffer) all sorts of non-traditional punishments, I am not really bother at all that they are not looking at severe guideline ranges.  But perhaps others are, and I welcome their comments on whether and how they think justice is being served in these cases now that we are moving into the sentencing phase.

April 8, 2019 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (8)