Tuesday, May 11, 2021

Fourth Circuit to review en banc recent panel ruling that lengthy (within-guideline) drug sentence was unreasonable

I noted in this post a few months ago the fascinating split Fourth Circuit panel ruling in US v. Freeman, No. 19-4104 (4th Cir. Mar. 30, 2021) (available here), which started this way:

Precias Freeman broke her tailbone as a teenager, was prescribed opioids, and has been addicted to the drugs ever since. In 2018, she was sentenced to serve more than 17 years in prison for possession with intent to distribute hydrocodone and oxycodone in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). After Freeman’s appointed counsel initially submitted an Anders brief asking for the Court’s assistance in identifying any appealable issues, we directed counsel to brief whether Freeman’s sentence is substantively reasonable and whether Freeman received ineffective assistance of counsel on the face of the record. On both grounds, we vacate Freeman’s sentence and remand this case for resentencing.

The dissenting opinion concluded this way:

I have great sympathy for Freeman’s circumstances. Her story reflects failures in our community. One could argue her sentence does not reflect sound policy. But that does not make it unreasonable under the law. And while the record is concerning regarding the effectiveness of counsel Freeman received, it does not conclusively demonstrate a failure to meet the constitutional bar at this juncture. I dissent.

This case is already quite the fascinating story, but this new Fourth Circuit order shows that it is due to have another chapter at the circuit level:

A majority of judges in regular active service and not disqualified having voted in a poll requested by a member of the court to grant rehearing en banc, IT IS ORDERED that rehearing en banc is granted.

I am grateful for the colleague who made sure I saw this order, but I am disappointed that the very, very, very rare federal sentence reversed as unreasonably long is now getting en banc review when so many crazy long sentences so often get so quickly upheld as reasonable. The language of this order suggests the Fourth Circuit decide to rehear this case en banc on its own without even being asked to do so by the Justice Department.  And I am also unsure about whether Fourth Circuit en banc procedure will lead to any further briefing or arguments, but  the fact that there are two key issues (ineffective assistance of counsel AND reasonableness of the sentences) means that there might be a wide array of opinions ultimately coming from the full Fourth Circuit.

Prior related post:

May 11, 2021 in Drug Offense Sentencing, Examples of "over-punishment", Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Sunday, May 02, 2021

Another effective (but still incomplete) look at possible sentencing outcomes for those prosecuted for Capitol riot

This new AP article, headlined "Charged in Jan. 6 riot? Yes, but prison may be another story," reviews potental sentencing outcomes for their role in the January 6 Capitol riot.  Here are some excerpts, to be followed by a bit of contextual commentary:

More than 400 people have been charged with federal crimes in the Jan. 6 attack on the Capitol.  But prison time may be another story.

With new defendants still flooding into Washington’s federal court, the Justice Department is under pressure to quickly resolve the least serious of cases.  While defendants charged with crimes such as conspiracy and assaulting officers during the insurrection could be looking at hefty sentences, some members of the mob who weren’t caught joining in the violence or destruction could see little to no time behind bars.

“The people who were just there for the ride and somewhat clueless, I think for most of them they probably will not get prison time. And for what it’s worth, I think that’s appropriate,” said Rachel Barkow, a professor at the New York University School of Law. “Having a misdemeanor on their record, going through all this is probably a pretty big wake-up call for most of the folks,” she said.

The siege was like nothing the country had ever seen, as the mob of supporters of then-President Donald Trump descended on the Capitol to stop the congressional certification of Joe Biden’s election victory.  But in the months since, Trump loyalists have worked to minimize the assault, while Democrats and others want justice for what they saw as a crime against democracy and the rule of law....

It’s a formidable task for lawyers and judges alike to determine the appropriate punishment to seek and hand down. Many defendants had steady jobs and no criminal records, factors typically rewarded with leniency in the criminal justice system.  As plea negotiations ramp up, the Justice Department must work to differentiate between the varying actions of the members of the mob that day without making it seem like some are getting away with mere slaps on the wrist....

Of the more than 400 federal defendants so far, at least 100 are facing only lower-level crimes such as disorderly conduct and entering a restricted area that do not typically result in time behind bars for first-time offenders.  Hundreds more were also charged with more serious offenses — like conspiracy, assault or obstruction of an official proceeding — that carry hefty prison time of years behind bars, but theses defendants could take pleas that would wipe those charges from their cases. Prosecutors have said they expect to charge at least 100 more people.

It’s going to be a test of racial fairness. The majority of the defendants are white.  Black and Latino defendants tend to face harsher sentences for the same crimes, and from the moment the mob marched on the Capitol, there were questions about whether the law enforcement response would have been different had the rioters been people of color....

If prosecutors seek stiff sentences for the lowest level Capitol riot defendants, they could lose their credibility with judges, said Laurie Levenson, a former federal prosecutor who now teaches at Loyola Law School.  And if they set the standard too high, they’ll be juggling hundreds of cases going to trial instead of focusing on the major offenders. Those most serious cases are where prosecutors can and should send a strong message, Levenson said. “If there’s any pressure on the Justice Department, it’s to deal with these cases in a way so that you never have to see them again,” she said. “And if people think that the price isn’t too high, who knows?”

At least one judge has expressed frustration at the pace of the prosecutions, which have overwhelmed the federal court already backlogged because of pandemic-related delays. On Tuesday, U.S. District Judge Christopher Cooper ordered the pretrial release of a man who was photographed sitting with his feet on a desk in House Speaker Nancy Pelosi’s office. The judge expressed concern that the case is moving too slowly.

Cooper noted that Richard Barnett has been jailed for nearly four months and questioned whether his time behind bars while the case is ongoing could exceed a possible sentence should Barnett plead guilty. The prosecutor estimated that the government would recommend a prison term ranging from nearly six years to 7 1/4 years if Barnett is convicted, though he could get credit for accepting responsibility if he pleads guilty.

All high-profile prosecutions, particularly when they involve persons without significant criminal histories, provide interesting settings to explore sentencing purposes and practices. These Capitol riot prosecutions have the added political intrigue of having those who usually advocate for harsher forms of justice likely being much more sympathetic to these defendants, while at least some usually most troubled by harsh sentencing may be more supportive of prison terms this unique setting.  And, as this AP article rightly notes, there overarching surely concerns about racial and social equity in light of historic patterns of prosecution and sentencing practices.

But the equity issue leaves me eager to see more comprehensive and consistent coverage of punishments being handed out to others involved in criminal behavior during other protests through 2020.  For example, consider these sentencing reports from local press in recent weeks:

I am certain that this is NOT anything close to a thorough accounting of the sentences that have been already handed down to persons who have engaged in criminal activity during protests and riots (e.g., here is a press report from Dec 2020 of a few case outcomes in Oregon).  I am even more certain that it could provide incredibly valuable for ultimately examining and assessing Capitol riot outcomes to have some kind of thorough overview of outcomes in these other (similar?) cases.   

Prior related posts:

May 2, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (8)

Thursday, April 29, 2021

US Sentencing Commission releases FY 2021 first quarter sentencing data showing COVID's continued impact on federal sentencings (and USSC data)

A helpful colleague made sure that I did not overlook the fact that the US Sentencing Commission this week published here its latest quarterly data report which covers "Fiscal Year 2021 - 1st Quarter Preliminary Cumulative Data (October 1, 2020, through December 31, 2020)."  These new data provide another official accounting of how COVID challenges continued to dramatically reduce the number of federal sentences imposed through the end of 2020.  Specifically, as reflected in Figure 2, while the three quarters prior to COVID averaged roughly 20,000 federal sentencings per quarter, the three quarters closing out 2020 had only between about 12,000 and 13,000 cases sentenced each quarter.  Figure 2 also shows that it is a steep decline in immigration cases that primarily accounts for the decrease in overall cases sentenced.

Also quite interesting is the big jump reported in these data of the number of below-guideline variances granted in the last two quarters (as detailed in Figures 3 and 4).  My colleague had this to say about this data: 

The overall rate of downward variances shot up recently and is staying up, while not surprisingly, the rate of within Guidelines sentences have dropped considerably.  The only apparent explanation is that judges are varying downward more frequently in light of the pandemic: COVID Variances to help lower the prison population and likelihood of infection spread.  Hopefully, if the Commission ever gets a quorum, it addresses the issue of infectious diseases and variances.  After all, 28 USC 994(g) states that “The sentencing guidelines prescribed under this chapter shall be formulated to minimize the likelihood that the Federal prison population will exceed the capacity of the Federal prisons, as determined by the Commission.”  Currently, 81 of the 193 BOP facilities are over their rated capacities making them that much more susceptible to outbreaks. 

Though I certainly want to believe more federal judges are imposing lower sentences because of COVID issues in prison, other data suggest there may be more to the story.  Specifically, in this new quarterly report, the USSC data still show that only 8.6% of offenders received a sentence of probation (in FY 2019, the last pre-COVID year, 7.7% of offenders receive probation; in FY 2018, 8.4% did).  In addition, the average sentence for drug trafficking and firearms and fraud seem largely unchanged when compared to pre-COVID years (though they have ticked down a month or two).  Still, if federal prosecutors during COVID are only moving forward with the most aggravated of cases, then having a few more more persons getting probation and many getting a few months less in prison may still reflect a real and consequential change in sentencing practices. 

In the end, though, I think the sharp increase in variances is primarily a product of the altered mix of cases now that the number of immigration cases being sentenced has declined dramatically.  Immigration sentences are, generally speaking, the least likely to include a variance; drug and fraud sentences are the most likely to include a variance.  Thus, when the case mix includes significantly fewer immigration cases, the overall sentenced population will have a greater percentage receiving variances.  Notably, this case mix story also surely explains why Figure 5 reports that the "Average Guideline Minimum" and the "Average Sentence" have been higher the last two quarters than any time in the last five years.  Immigration cases, generally speaking, have lower guideline minimums and lower average sentences; take a lot of these cases out of the overall mix, and the average for all the other cases will increase.

Ah, the many joys of complicated sentencing data!

April 29, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (0)

Saturday, April 24, 2021

Third Circuit panel explores curious loss calculations in federal fraud guidelines

A helpful reader made sure I did not miss the interesting Third Circuit panel ruling this past week in US v. Kirschner, No. 20-1304 (3d Cir. April 22, 2021) (available here), discussing loss calculations under the fraud guidelines. There are lots of element to the Kirschner opinion, but the introduction provides an effective overview:

In 2018, Jonathan Kirschner pleaded guilty to one count of impersonating an officer acting under the authority of the United States and one count of importing counterfeit coins and bars with intent to defraud.  At sentencing, the District Court applied to Kirschner’s sentence three enhancements pursuant to the U.S. Sentencing Guidelines — a 2-level enhancement because Kirschner’s fraud used sophisticated means; another 2-level enhancement because Kirschner abused a position of public trust to facilitate his crimes; and a 22-level enhancement because the “loss” attributable to his scheme was greater than $25 million but less than $65 million, even though it grossed only about one one-thousandth of that.

Kirschner appeals the District Court’s judgment of sentence and challenges the three enhancements it applied.  For the reasons that follow, we will vacate Kirschner’s sentence and remand for resentencing.  While the District Court was well within its discretion to apply the abuse-of-trust and use-of-sophisticated-means enhancements, we conclude it clearly erred in applying the 22-level enhancement for loss, and we cannot say that the error was harmless.

I have always thought the federal fraud guideline deeply misguided due to commentary basing offense severity calculations on the greater of intended or actual loss (and the guideline is also deeply problematic for placing extreme emphasis on "loss" and by only requiring proof by a preponderance).  In this case, a focus on intended loss meant a guy who netted only about $30,000 selling fake goods when caught was sentenced as if he had netted $36 million! 

Ultimately, the panel here concluded intended loss was not subject to the "deeper analysis" needed to justify the district court's calculation.  But, for those following broader debates over the basic validity of guideline commentary, the panel had this interesting aside:

Under a Guidelines comment, a court must ... identify the greater figure, the actual or intended loss, and enhance the defendant’s offense level accordingly.  Only this comment, not the Guidelines’ text, says that defendants can be sentenced based on the losses they intended.  By interpreting “loss” to mean intended loss, it is possible that the commentary “sweeps more broadly than the plain text of the Guideline.”  United States v. Nasir, 982 F.3d 144, 177 (3d Cir. 2020) (en banc) (Bibas, J., concurring).  But Kirschner assumes the comment is correct, and so we will too.

This kind of aside reinforces my sense — or perhaps I should just say my hope — that it is only a matter of time before the US Supreme Court will consider, in some context, the validity of guideline commentary that arguably “sweeps more broadly than the plain text" of the guideline.

April 24, 2021 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0)

Wednesday, April 21, 2021

Split Eleventh Circuit panel rejects equal protection challenge to illegal reentry guideline

Yesterday the Eleventh Circuit handed down an interesting split panel opinion in US v. Osorto, No. 19-11408 (11th Cir. April 20, 2021) (available here). These paragraphs from the start of the majority opinion provides a flavor for the issues and the court's holding:

Defendant-Appellant Juan Carlos Osorto was convicted of illegal reentry after the 2016 Guidelines went into effect.  Because he had committed other offenses both before his original deportation and after it, but before his current illegal-reentry offense, he received offense-level increases under both subsections 2L1.2(b)(2) and (3).  He now challenges both subsections as violations of, among other things, his equal-protection rights.  Osorto (and the Dissent) argue that these guidelines, which apply to only illegal-reentry offenses, discriminate against noncitizens by counting their prior convictions twice — once in the offense level and a second time in the Guidelines’ criminal-history calculation. Meanwhile, Osorto contends, citizens cannot illegally reenter the United States, and generally, no guidelines for other offenses count prior convictions in both the offense-level and criminal-history calculations.  So in Osorto’s view, subsections 2L1.2(b)(2) and (3) unlawfully discriminate against noncitizens.

We disagree.  First, Osorto’s challenge to § 2L1.2(b)(2) is foreclosed by our binding precedent in the form of Adeleke.  Second, Osorto (and the Dissent) consider the wrong universe of individuals.  Subsections 2L1.2(b)(2) and (3) do not apply to all noncitizens convicted of any crime in the United States; rather, they apply to only those noncitizens who both have illegally reentered the United States and have been convicted of other crimes.  This is important because, third, through § 1326(b), Congress has determined that illegally reentering the United States after being deported following conviction on another crime is a more serious offense than simply illegally reentering the United States, and that conduct should be deterred.  The challenged guidelines reflect the national interests that Congress permissibly has endorsed through its enactment and amendment of § 1326(b).  Fourth, Congress has entrusted the Sentencing Commission with direct responsibility for fostering and protecting the interests of, among other things, sentencing policy that promotes deterrence and appropriately punishes culpability and risk of recidivism — the interests the Sentencing Commission cited in issuing the challenged guidelines. Finally, subsections 2L1.2(b)(2) and (3) are rationally related to the Commission’s stated interests in issuing them.  So after careful consideration, and with the benefit of oral argument, we must uphold the guidelines at issue and affirm Osorto’s sentence.

Here is part of the start of the dissenting opinion by Judge Martin:

Mr. Osorto challenges Guideline § 2L1.2(b)(3) on equal protection grounds.  This Guideline makes for tougher sentences for defendants who commit a designated offense after reentering the United States without authorization.  See USSG § 2L1.2(b)(3).  This list of designated offenses does not include the offense of unauthorized reentry itself.  See id. Meanwhile, a defendant is already punished for both the unauthorized reentry and any other offense that leads to the increased punishment imposed by § 2L1.2(b)(3) on account of the calculation of a defendant’s criminal history under the Sentencing Guidelines.  See USSG § 4A1.1(b).  The result is that any offense committed after unauthorized reentry is double-counted for noncitizens in their Guideline calculation based on little more than their immigration status.  Sentencing Guideline § 2L1.2(b)(3) therefore subjects noncitizen defendants to more severe punishment than citizens who commit the same crime.  Mr. Osorto argues that this more severe punishment imposed upon him because he is a noncitizen violates his Fifth Amendment right to equal protection of the laws.  U.S. Const. Amend. V; see United States v. Windsor, 570 U.S. 744, 774, 133 S. Ct. 2675, 2695 (2013) (“The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws”).  I believe he is right.

April 21, 2021 in Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (0)

Friday, April 16, 2021

First public plea deal struck by Capitol rioter, who agrees to cooperate and to reported guideline range of 41 to 51 months in prison

As reported in this Fox News piece, headlined "Capitol rioter takes first public plea deal, agrees to cooperate with authorities: sources," the first big plea in the Capitol riot cases has been announce by the Justice Department. Here are the basics with a few points highlighted:

An alleged member of the Oath Keepers militia group who was "among the first five or six" rioters to enter the U.S. Capitol Building on Jan. 6 is the first person to agree to take a plea deal, Fox News has learned. Jon Schaffer has also agreed to cooperate against others involved in the riot, officials said.

Speaking in court Friday morning, a federal prosecutor told U.S. District Court Judge Amit Mehta that Schaffer was "among the first five or six" rioters to enter the Capitol during the Jan. 6 siege. Schaffer is also the frontman of the band Iced Earth. The central Indiana native who was photographed with the mob that stormed the U.S. Capitol is accused of spraying police officers with a pepper-based bear spray irritant, the FBI previously said.

He was charged with several felony counts, including engaging in an act of physical violence and knowingly entering or remaining in any restricted building or grounds without lawful entry. Schaffer, 53, pleaded guilty to obstruction of an official proceeding and entering and remaining in a restricted building or grounds with a deadly or dangerous weapon.

He faces up to 30 years in prison if convicted, but Mehta said Friday sentencing guidelines call for 41 to 51 months in prison....

A sentencing hearing date has not yet been set.  Schaffer was released and will be allowed some travel for work.  He must stay out of Washington, D.C., other than for court-related matters and may not possess any firearms.

I have not yet been able to find a plea agreement or other public document that details how the guideline range of 41 to 51 months was determined. But I still find those numbers interesting, as well as the fact that this defendant, even after pleading guilty, is to be free pending sentencing.

This official DOJ press release, headed "Lifetime Founding Member of the Oath Keepers Pleads Guilty to Breaching Capitol on Jan. 6 to Obstruct Congressional Proceeding," provide some more context:

Jon Schaffer, 53, of Columbus, Indiana, today admitted that he breached the Capitol on January 6, 2021, wearing a tactical vest and armed with bear repellent, and pleaded guilty to unlawfully entering the U.S. Capitol to obstruct Congress’ certification of the U.S. presidential election results.

"On this 100th day since the horrific January 6 assault on the United States Capitol, Oath Keepers member Jon Schaffer has pleaded guilty to multiple felonies, including for breaching the Capitol while wearing a tactical vest and armed with bear spray, with the intent to interfere with Congress’ certification of the Electoral College results," said Acting Deputy Attorney General John P. Carlin. "The FBI has made an average of more than four arrests a day, seven days a week since January 6th. I commend the hundreds of special agents, prosecutors and support staff that have worked tirelessly for the last hundred days to bring those who committed criminal acts to justice."

"The defendant in this case admits forcing his way into the U.S. Capitol on January 6 for the express purpose of stopping or delaying congressional proceedings essential to our democratic process. These actions are disgraceful and unacceptable" said FBI Deputy Director Paul M. Abbate.  "The FBI and our partners will continue to utilize all available authorities to aggressively investigate, pursue and hold accountable those who committed acts of violence or otherwise violated the rule of law that day."...

Schaffer pleaded guilty to a criminal information charging him with obstruction of an official proceeding and entering and remaining in a restricted building or grounds with a deadly or dangerous weapon. Combined, he faces up to 30 years in prison if convicted. The Honorable Amit P. Mehta accepted Schaffer’s guilty plea.

A few prior related post:

UPDATE:  A helpful colleague got me a copy of the plea agreement, which can now be downloaded here:

Download PleaSchaffer

April 16, 2021 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3)

Monday, April 05, 2021

US Sentencing Commission releases "Overview of Federal Criminal Cases, Fiscal Year 2020"

The US Sentencing Commission, despite the persistent lack of a quorum, can still churn out federal sentencing data and can still produce helpful reports about that data.  One such report is its annual review of federal criminal cases, which was released  today under tht title "Overview of Federal Criminal Cases, Fiscal Year 2020."  The full 27 page report is available here, and the USSC describes and summarizes the report this way on this webpage

Summary

The United States Sentencing Commission received information on 64,659 federal criminal cases in which the offender was sentenced in fiscal year 2020.  Among these cases, 64,565 involved an individual offender and 94 involved a corporation or other “organizational” offender.  The Commission also received information on 5,859 cases in which the court resentenced the offender or otherwise modified the sentence that had been previously imposed.  This publication provides an overview of these cases.

Highlights

A review of cases reported to the Commission in fiscal year 2019 reveal the following:

  • The 64,565 individual original cases reported to the Commission in fiscal year 2020 represent a decrease of 11,973 (15.6%) cases from fiscal year 2019, reflecting the impact of the COVID-19 pandemic on the work of the courts.
  • Cases involving drugs, immigration, firearms, and fraud, theft, or embezzlement accounted for 86.4% of all cases reported to the Commission.
  • Immigration cases were the most common federal crimes in fiscal year 2020 (41.1%)..
  • Drug possession cases continued a five-year downward trend, decreasing 22.0 percent from fiscal year 2019, while the number of drug trafficking cases reversed a slight upward trend from 2019 — falling 17.3 percent.
  • Methamphetamine offenses were the most common drug cases.  The 7,537 methamphetamine cases represented 45.7% of all drug crimes.

April 5, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (0)

Sunday, April 04, 2021

US Sentencing Commission may still lack a quorum, but now it has a podcast!

I am ever grumpy that the US Sentencing Commission has been without a quorum for well over two years (see here), while also being ever hopeful we will get new Commissioner nominees soon (see here and here).  But this past week I was ever pleased to see a notice at the US Sentencing Commission's website spotlighting "COMMISSION Chats: NEW PODCAST SERIES."  This USSC webpage explains:

Brought to you by the Office of Public Affairs, Commission Chats is a podcast series designed to inform the public of the Commission's objectives and work through interviews with senior leadership and other subject matter experts.  Listeners will hear about current projects directly from the staff bringing these projects to completion.

And here is the description of the first entry:

Commission Chats -- Episode 1 (MARCH 2021)

Episode 1: An Interview with Staff Director Ken Cohen In the pilot episode of Commission Chats, Kenneth Cohen, Staff Director of the Commission, discussed our core missions and gave some tips on how the Commission can make a new Hill staffer's life a bit easier. (Published March 30, 2021)

 

UPDATE: The USSC on Monday, April 5 posted Commission Chats -- Episode 2 (April 2021):

Episode 2: ORD Deputy Director Kristin Tennyson and the Interactive Data Analyzer (IDA) Go behind the scenes with IDA in this Commission Chats podcast episode!  Kris Tennyson, Deputy Director of the Office of Research and Data, talks about its development, how to best utilize it, and what the future holds for IDA. (Published April 5, 2021)

April 4, 2021 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Seemingly encouraging, but quite complicated, analysis of racial disparities in federal drug sentencing

The past week's Washington Post included this notable op-ed by Charles Lane under the headline "Here’s some hope for supporters of criminal justice reform." A focal point of the op-ed was this newly published paper by sociologist Michael Light titled "The Declining Significance of Race in Criminal Sentencing: Evidence from US Federal Courts."  Here is how the op-ed discusses some key findings with a positive spin:

How many more months in prison do federal courts give Black drug offenders as opposed to comparable White offenders?

The correct answer, through fiscal 2018, is: zero.  The racial disparity in federal drug-crime sentencing, adjusted for severity of the offense and offender characteristics such as criminal history, shrank from 47 months in 2009 to nothing in 2018, according to a new research paper by sociologist Michael Light of the University of Wisconsin.  For federal crimes of all types, there is still a Black-White discrepancy, but it, too, has shrunk, from 34 months in 2009 to less than six months in 2018....

What went right?  Basically, decision-makers unwound policies that had provided much higher maximum penalties for trafficking crack cocaine than the powdered variant and, crucially, had encouraged federal prosecutors to seek those maximum penalties.  Supreme Court rulings, in 2007 and 2009, gave federal judges latitude to impose more-lenient sentences for crack dealing. The 2010 Fair Sentencing Act reduced the crack vs. powder punishment disparity, from a maximum of 100 times as much prison time to 18.

And starting that same year, the Obama administration Justice Department actively sought to diminish the disparity. As part of this effort, Attorney General Eric H. Holder Jr. instructed federal prosecutors in 2013 not to seek the maximum penalty for drug trafficking by low-level, nonviolent defendants.

The upshot was that the average federal drug sentence for Black offenders fell 23 months, while that for White offenders rose 23 months, possibly due to the growing prevalence of opioids and methamphetamine in White communities.  For all federal crimes, sentences for White offenders rose from 47 months to 61, while those for Black offenders fell from 81 to 67.

The United States has now restored the racial parity in federal sentencing that — perhaps surprisingly — existed before the war on crack’s start in the late 1980s.  As of the mid-1980s, Black and White offenders had received roughly 26 months in prison.

Though I am disinclined to be too much of a skunk at a sentencing equity party, I do not believe the Light study really should be the cause of too much celebration in our era of modern mass incarceration.  For starters, the Light study documents that greater racial parity was achieved as much by increases in the length of federal drug sentences given to white offenders as decreases in these sentences to black offenders.  More critically, in 2018, the feds prosecute a whole lot more drug defendants and the average federal sentence for both White and Black drug offenders is still a whole lot longer (nearly 300% longer) than in an earlier era.  I find it hard to be too celebratory about they fact that we now somewhat more equally send a whole lot more people to federal prison for a whole lot longer for drug offenses.

Moreover, the Light analysis highlights that it is largely changes in the composition of cases being sentenced in federal court that account for why average drug sentences are now more in parity among whites and blacks.  The longest federal drug sentences are handed out in crack cases (disproportionately Black defendants) and meth cases (disproportionately White defendants), so as crack prosecutions declined and meth prosecutions increased over the last decades (see basic USSC data here), it is not that suprising that average federal drug sentences for black offenders went down and those for white offenders went up. 

I do not want to underplay the importance of the harsh federal system now being directed more equally toward whites and blacks, but I do want to be sure to highlight one more key finding from the Light stidy: "In 2018, black offenders received an additional 1.3 mos. of incarceration relative to their white peers.  In drug cases, they received an additional 5 mos.  These results are not explained by measures of offense severity, criminal history, or key characteristics of the crime and trial."  In other words, while Light finds that average federal drug sentences have come into parity across all cases, looking at individual drug cases reveals black offenders are still sentenced to nearly a half-year longer than comparable white offenders.  

That all said, it is fascinating to see the data that Light spotlights and effectively unpacks (I highly recommend his paper), and I am grateful Lane spotlights what still might reasonably be viewed as a hopeful story.  I especially hope folks will keep an eye on these data as we now work our way through the COVID era and its unpredicatable impact on case composition and processing.

April 4, 2021 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (0)

Wednesday, March 31, 2021

Might we be getting closer to (needed) new nominees for the "frozen" US Sentencing Commission?

I was so excited to see Prez Biden announce his first slate of judicial nominations in part because I have been presuming that we would not get needed nomination to the US Sentencing Commission until at least some judge nominees were first put forward.  (Ever the fan of semantic technicalities, I think we should also call any nomination to the USSC to be "judicial nominees" given that the USSC is the only agency located in the judicial branch.)  Adding to my excitement is this recent Roll Call article suggesting that nominations are in the works and may be able to be advanced quickly through Congress in a bipartisan manner.  I recommend the lengthy Roll Call article in full, and its full title highlights its themes: "Help wanted: Revived commission could spark criminal justice changes: Key judicial agency hasn’t had enough members to function for years." Here are excerpts:

The judicial agency that sets such policies hasn’t had enough members to function for years.  “What’s happened is, we’re frozen in time,” said Senior U.S. District Judge Charles R. Breyer, the lone remaining member of the seven-person U.S. Sentencing Commission.

That could soon change.  The Biden administration has reached out to key lawmakers and the criminal justice community for guidance on a slate of appointments to revive the sentencing commission, a move that also could influence congressional efforts to further change the nation’s criminal justice system.

President Joe Biden will make those picks against the backdrop of a simmering debate about fairness in the nation’s criminal justice system, after a summer of social unrest related to police misconduct sparked a focus on racial inequity in the criminal justice system more broadly.  Advocates say sentencing is a crucial consideration when it comes to overhaul.  A bipartisan group of senators on Friday reintroduced a broad sentencing overhaul bill, which includes provisions that direct the sentencing commission to act to implement it....

The commission must include two additional federal judges, and no more than four members can be from the same political party.  The Senate must approve the members.  The last confirmation vote was for Breyer’s reappointment, four years ago this month, at the beginning of Donald Trump’s presidency.  Breyer is the brother of Supreme Court Justice Stephen G. Breyer, and his term on the commission expires in October.

Trump made nominations for the sentencing commission, including two federal judges with reputations for tough-on-crime approaches.  But those nominees went nowhere because they raised concerns from civil rights groups, Senate Democrats and Iowa Republican Sen. Charles E. Grassley about whether those members would carry out the changes in the 2018 law known as the First Step Act.  Grassley, when he was chairman of the Judiciary Committee, championed the bill with now-Chair Richard J. Durbin of Illinois.  The Senate passed the bill, 87-12, and it became one of Congress’ few major bipartisan accomplishments in recent years.

Grassley said this week that he has had conversations that indicate the Biden administration is working to avoid Senate confirmation problems for a slate of nominees to the sentencing commission “because both they — the White House —and this senator, and I’m sure a lot of other senators, want to get the commission up and running so it can do its work.”

Durbin said in a written response to questions that the commission “can play a vital role in sentencing reform by informing Congress about federal sentencing developments.” But he also hinted at broader aims for the commission. “For too long, federal sentencing policies have had a disparate impact on Black and brown Americans,” Durbin said. “Our sentencing policies have to reflect fairer standards.”...

Breyer said the Judicial Conference is currently considering a list of judges to submit to the White House for consideration, and he anticipates that the White House will put forward a slate of six nominees.  Until then, he said, “I think we’re in crisis.” The sentencing structure was designed to change over time and be guided by experience, he said.  “And it’s an understandable tendency that if the guidelines don’t reflect reality that they’re ignored or given less weight,” Breyer added.  

A few prior recent related posts:

March 31, 2021 in Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Who Sentences | Permalink | Comments (0)

Tuesday, March 30, 2021

"Many Capitol rioters unlikely to serve jail time" because some facing only misdemeanor convictions

The quoted title of this post is the lead headline of this lengthy and detailed Politico discussion of some of the case processing realities surrounding the on-going federal prosecutions of persons involved in the insurrection on January 6, 2021.  I recommend the piece in full, and here are excerpts:

Americans outraged by the storming of Capitol Hill are in for a jarring reality check: Many of those who invaded the halls of Congress on Jan. 6 are likely to get little or no jail time.  While public and media attention in recent weeks has been focused on high-profile conspiracy cases against right-wing, paramilitary groups like the Oath Keepers and the Proud Boys, the most urgent decisions for prosecutors involve resolving scores of lower-level cases that have clogged D.C.’s federal district court.

A POLITICO analysis of the Capitol riot-related cases shows that almost a quarter of the more than 230 defendants formally and publicly charged so far face only misdemeanors. Dozens of those arrested are awaiting formal charges, even as new cases are being unsealed nearly every day. In recent days, judges, prosecutors and defense attorneys have all indicated that they expect few of these “MAGA tourists” to face harsh sentences.

There are two main reasons: Although prosecutors have loaded up their charging documents with language about the existential threat of the insurrection to the republic, the actions of many of the individual rioters often boiled down to trespassing.  And judges have wrestled with how aggressively to lump those cases in with those of the more sinister suspects. “My bet is a lot of these cases will get resolved and probably without prison time or jail time,” said Erica Hashimoto, a former federal public defender who is now a law professor at Georgetown....

The resolution of the more mundane cases also presents acute questions about equity, since most of the Capitol riot defendants are white, while misdemeanor charges are often a vexing problem for minority defendants in other cases.  There are also sensitive issues about precedent for the future, given the frequency of politically inspired demonstrations on Capitol Hill that run afoul of the law....

Prosecutors have signaled that plea offers for some defendants will be coming within days and have readily acknowledged that some of the cases are less complicated to resolve than others. “I think we can work out a non-trial disposition in this case,” Assistant U.S. Attorney Emory Cole told Judge Dabney Friedrich last week in the case of Kevin Loftus, who was charged with unlawful presence and disrupting official business at the Capitol, among other offenses that have become the boilerplate set lodged against anyone who walked into the building that day without authorization.

The Justice Department will soon be in the awkward position of having to defend such deals, even as trials and lengthy sentences for those facing more serious charges could be a year or more away....

Former federal prosecutor Paul Butler said he hopes that those most troubled by the Capitol riot won’t recoil at the looming deals for many participants. “The punishment has to be proportional to the harm, but I think for many of us, we’ll never forget watching TV Jan. 6 and seeing people wilding out in the Capitol,” said Butler, now a law professor at Georgetown. “Everybody who was there was complicit, but they’re not all complicit to the same degree for the same harm.”

A standard set of four misdemeanor charges prosecutors have been filed in dozens of the Capitol cases carries a maximum possible punishment of three years in prison.  But that sentence or anything close to it is virtually unheard of in misdemeanor cases, lawyers said.  “Nobody goes to jail for a first or second misdemeanor,” Butler said flatly....

In virtually all the non-felony cases, the charges are likely to be grouped together as trespassing under federal sentencing guidelines.  While those guidelines contain a small enhancement for entering a “restricted” building or grounds, defendants with no significant criminal history are looking at the lowest possible range: zero to six months. “Zero” months means no jail at all....

Another factor prosecutors and judges may weigh is that the treatment of misdemeanors by the justice system is currently the subject of intense attention in criminal justice reform circles. Reformers say such minor charges often cause major complications in the lives of the minority defendants who typically face them. “A lot of Black or brown people, they don’t get the benefit of individual judgment or breaks,” said Butler.  “I think this will be a record number of white people who appear in federal criminal court in D.C….If they’re receiving mercy, the prosecutor’s office should make sure that same mercy will be applied to all the other people who they prosecute, who are mainly people of color and low-income people.”

The former prosecutor said he hopes the high-profile Capitol prosecutions call attention to the underlying equity issues and to the fact that the vast majority of federal cases are resolved not through trials but the plea negotiations that are about to begin. “This could be a teachable moment here for the public,” Butler said.

I have highlighted lots of quotes by Prof Butler here because I share he view that these cases present an important "teachable moment," and because I hope persons who support criminal justice reform and who are troubled by modern mass incarceration will not be unduly critical of non-carceral outcomes for lower-level offenders even in this high-profile crime.  In addition to this "mass crime" helping to teach that prison time is not essential for any and every offender, these cases may be able to spotlight how disruptive a prosecution and non-carceral punishment can prove to be for defendants.  I surmise many of the lower-level defendants here have already endured a lot of formal and informal punitive consequences from their indictment, and they will continue to face all sorts of formal and informal consequences after any convictions.  Even defendants who get probation, I would guess, will not be eager to brag that they only suffered a "slap on the wrist" and perhaps some will even be usefully vocal about how much punishment the criminal justice process itself produces even if no jail time is imposed.

March 30, 2021 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Monday, March 22, 2021

Notable SCOTUS partners urging (unavailable) USSC to clarify a guideline point

As noted before, the big SCOTUS news today for sentencing fans was the Justices' decision to grant cert to reconsider the reversal of the federal death sentence for Boston Marathon bomber Dzhokhar Tsarnaev.  (How Appealing collects some of the major media coverage here).  But for federal guideline gurus, the SCOTUS order list also included a fascinating little statement by Justice Sotomayor, joined by Justice Gorsuch, respecting the denial of certiorari in Longoria v. United States, No. 20–5715. 

For starters, though seeing Justices Sotomayor and Gorsuch together might surprise some, folks who follow non-capital sentencing jurisprudence likely know that these two often speak in harmony on these kinds of issues.  More notable is what these Justices had to say within a three-paragraph statement focused on the application of one of the few downward adjustments in the US Sentencing Guidelines.  Here are highlights:

This petition implicates an important and longstanding split among the Courts of Appeals over the proper interpretation of § 3E1.1(b).  Most Circuits have determined that a suppression hearing is not a valid basis for denying the [extra one-point acceptance of responsibility] reduction....  A minority of Circuits have concluded otherwise.  In this case, for example, the Fifth Circuit accepted the Government’s refusal to move for a reduction after it had to prepare for a 1-day suppression hearing....

The Sentencing Commission should have the opportunity to address this issue in the first instance, once it regains a quorum of voting members. [FN*]  Cf. Braxton v. United States, 500 U.S. 344, 348 (1991).  I write separately to emphasize the need for clarification from the Commission.  The effect of a one-level reduction can be substantial.  For the most serious offenses, the reduction can shift the Guidelines range by years, and even make the difference between a fixed-term and a life sentence.  The present disagreement among the Courts of Appeals means that similarly situated defendants may receive substantially different sentences depending on the jurisdiction in which they are sentenced. When the Commission is able, it should take steps to ensure that § 3E1.1(b) is applied fairly and uniformly.

[FN*] Currently, six of the seven voting members’ seats are vacant.  The votes of at least four members are required for the Commission to promulgate amendments to the Guidelines.  See U.S. Sentencing Commission, Organization (Mar. 18, 2021), https://www.ussc.gov/about/who-weare/organization.

I am very pleased to see a couple Justices flag this issue, and I especially like the emphasis that the "effect of a one-level reduction can be substantial."  In other words, kudos to these Justices for making the point that even a single guideline point can be a big deal. (And I suspect that this sentence alone may end up in a lot of future briefs.)  I also like a high-profile shout out to a (non-functional) Sentencing Commission to take up this matter. 

But the split noted here has been kicking around for decades, meaning that the Commission has already long been able to, and long failed to, address this issue.  Moreover, because the Sentencing Commission currently lacks a quorum, practically speaking, it will not be able to address this issue until at least 2022 even if future members are eager to do so.

For the entire history of the federal sentencing guidelines, and as explained in the 1991 SCOTUS Braxton ruling, the Supreme Court has generally left it to the Commission to resolve conflicts over guideline interpretation.  I understand the thinking behind this kind of deflection (although I flagged some concerns in a long-ago article, The Sentencing Commission as Guidelines Supreme Court: Responding to Circuit Conflicts, 7 Fed. Sent. Rep. 142 (1994)).  Now that the guidelines are "effectively advisory," there is arguably even stronger reasons for SCOTUS not to spend its limited time on the resolution of circuit conflicts over guideline interpretation.

Still, this kind of case leaves me wondering if, at some point, the Justices can and should be prepared to actually adjudicate guideline matters that have long festered and allows "similarly situated defendants [to possibly] receive substantially different sentences depending on the jurisdiction in which they are sentenced."  Moreover, here we have a guideline provision being applied to functionally punish defendants seeking to vindicate constitutional rights through a court motion, a type of guideline issue which might be especially appropriate for the Supreme Court's intervention.

March 22, 2021 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, March 18, 2021

Notable new Seventh Circuit panel opinion on ineffectiveness of counsel failing to raise meritorious guideline argument

A helpful reader alerted me to a notable new ineffective assistance opinion from the Seventh Circuit in Bridges v. US, No. 20-1623 (7th Cir. Mar. 17, 2021) (available here).  Here is how this opinion gets started:

This appeal raises fundamental questions about what is expected of defense counsel in the federal criminal justice system, where almost all defendants plead guilty.  Counsel must negotiate guilty pleas and argue for more lenient sentences, both of which require expert knowledge of the federal Sentencing Guidelines.  This knowledge is a core competency for federal criminal defense.  The issue here is whether a lawyer’s failure to raise an important and, in this case, ultimately meritorious guideline argument may constitute ineffective assistance of counsel even where there was no directly on-point precedent within the circuit at the relevant time.  We find that it may in this case.

Now in his sixties, petitioner Jeffery Bridges has been in and out of prison since he was a teenager and has been battling drug addiction even longer.  After staying out of trouble for eight years, Bridges got involved in drugs again and committed four robberies in two days in March 2017.  He netted scarcely $700 in total and was easily caught by the police. A federal grand jury indicted Bridges for four counts of robbery in violation of the Hobbs Act, 18 U.S.C. § 1951.

Bridges agreed to a guilty plea stipulating that he was subject to the guideline career offender enhancement, U.S.S.G. § 4B1.1, which could apply only if his crimes of conviction were “crimes of violence” as defined by the Guidelines.  This enhancement more than doubled his advisory guideline sentencing range.  The district court imposed a below-guideline sentence of 140 months.  Bridges did not appeal. He had waived that right in his plea deal.

Bridges now seeks postconviction relief under 28 U.S.C. § 2255, alleging he was denied effective assistance of counsel in pleading guilty.  He argues that his lawyer failed to realize and argue that Hobbs Act robbery did not then qualify as a “crime of violence” under the Guidelines, so he should not have been categorized as a career offender.  When Bridges pleaded guilty and was sentenced, there was no binding precedent in this circuit on this issue. Bridges argues that competent counsel still would have recognized the issue or at least known to investigate it.  The district court denied relief without holding a hearing, reasoning that counsel’s failure to anticipate arguments that we have not yet accepted cannot be constitutionally deficient.

We reverse for an evidentiary hearing on defense counsel’s performance under 28 U.S.C. § 2255(b).  First, we join the other circuits that have concluded that Hobbs Act robbery is not a “crime of violence” as that phrase is currently defined in the Guidelines.  Although we had not so ruled when Bridges pleaded guilty, the building blocks for a successful legal argument were already in place.  Effective counsel would have considered this question that was so important in this case.  At that time, minimal research would have uncovered a Tenth Circuit decision squarely holding that Hobbs Act robbery was no longer a crime of violence under a 2016 amendment to the guideline definition of a crime of violence.

We realize how counterintuitive it is to argue or hold that Hobbs Act robbery is not a crime of violence — and that counsel could be deficient for failing to argue for that unexpected result.  Yet defense lawyers, prosecutors, and judges in the federal system all appreciate that both statutory and guideline sentencing enhancements for recidivism and crimes of violence have produced many counterintuitive results over the last several decades.  During those years, both federal statutes and the Sentencing Guidelines have used the “categorical method” to classify prior convictions and current offenses.  The Sentencing Commission proposed guideline amendments in 2018 to reduce reliance on the categorical method. 83 Fed. Reg. 65400, 65407–65412 (Dec. 20, 2018).  The Commission has been unable to act on those proposed amendments, though, because it has lacked a quorum for years.  Bridges may be a beneficiary of that odd circumstance.

March 18, 2021 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Tuesday, March 16, 2021

Amusing (but still quite serious) reminder of what not to do while awaiting federal sentencing

A Sixth Circuit panel yesterday issued a notable (unpublished) opinion in US v. Cadieux, No. 20-1689 (6th Cir. Mar. 15, 2021) (available here).  It is hard not to be somewhat amused by the facts of the case, but it is still important not to downplay the serious sentencing realities involved.  Here are the factual basics:

Cadieux was involved in a Michigan conspiracy to distribute marijuana in which he grew and then sold at least 100 pounds of processed marijuana over the course of two years to Andrew Bravo who then sold the drugs to others.  Cadieux was arrested and charged in December 2019 for his role in this drug-trafficking conspiracy.

He was very cooperative in the case against him.  Shortly after his arrest, he gave the government information and testified before a grand jury.  And after the court released him on bond, Cadieux entered into a plea agreement and pled guilty to conspiracy to manufacture, distribute, and possess with intent to distribute 50 kilograms or more of marijuana. While out on bond, however, Cadieux also made some poor choices.

First, he violated his conditions of release when he ate a marijuana brownie, tested positive for marijuana three times, and took two Adderall pills prescribed to someone else. Second, he discussed details of his pending criminal investigation on a local radio show, “Free Beer and Hot Wings,” after the hosts asked listeners about the easiest money they had ever made.  Cadieux told the hosts that he had made about three million dollars in past three years growing and selling marijuana.  He acknowledged that he was going to prison for it.  But he said “it was worth it” because he was only going to prison for 15 to 24 months, and he could keep the money he made because he was “good at hiding” it. (R. 173, Presentencing Report, PageID 331.)  He told them his plan was to “get out and do it again,” but he said that the next time he was “gonna do it legally . . . but in [his] wife’s name” because he couldn’t “do it in [his] name no more.” (First Call.)  One of the hosts responded, “yeah, you’ll be a felon . . . .” (Id.)  Third, after realizing the call had been a mistake, Cadieux called again and asked the show to “dump a cup of coffee on the sound board and get rid of the call” because the call had upset his attorney. (R. 185, Sentencing Hearing, PageID 597.) He offered to pay for a replacement.

After Cadieux’s call to “Free Beer and Hot Wings,” the government investigated Cadieux’s concealment of drug money.  It “identified significant sums of unexplained cash hid[den] in his bank accounts.” (Id. at 602.)  And Cadieux agreed to voluntarily forfeit $75,000, which the government believed more accurately represented his drug profits than Cadieux’s statements on the air.

Critically, Cadieux's calls into the "Free Beer and Hot Wings" radio show ended up costing him a lot more than the forfeited $75,000.  Specifically, as a direct result of this call and his other pre-sentencing behavior, "probation’s presentence report (PSR) recommended an enhancement for obstruction of justice and refused to recommend a reduction for acceptance of responsibility."  The sentencing court adopted these recommendations:

It found that Cadieux was not entitled to the acceptance-of-responsibility reduction for two reasons: 1) Cadieux’s statements on the radio show indicating his intent to “go right back to it” coupled with his attempts to destroy the recording and 2) Cadieux’s continued drug use in violation of bond conditions. (Id. at 609-11.) It found the obstruction enhancement appropriate because “the phone calls were relevant for sentencing”; it was particularly troubled by “the request of the radio station to ditch the tape.” (Id. at 610.) The court sentenced him to 37 months.

The Sixth Circuit panel affirms these determinations and upholds the 37 month sentence.  Given that the defendant here might have only been looking originally at a little more than year in prison, it seems that his foolish braggadocio and related pre-sentencing behavior cost him more time in prison than his offense behavior of conspiring to distribute 50 kilograms or more of marijuana.

March 16, 2021 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (3)

Monday, March 15, 2021

US Sentencing Commission releases 2020 Annual Report and Sourcebook of Federal Sentencing Statistics

This morning I receive an email from the US Sentencing Commission alerting me to the exciting news that "today the U.S. Sentencing Commission published its 2020 Annual Report and Sourcebook of Federal Sentencing Statistics." Here are the highlights as described in the email:

Agency Highlights

The Annual Report presents an overview of the Commission's work in FY20—a year that brought unique challenges and opportunities for technological advancement as a result of the COVID-19 pandemic.

  • COVID-19 significantly impacted how the Commission performs its daily work; however, sustained and strategic investments in technology, automation, and cybersecurity allowed for a quick pivot and continuity of operations culminating in this seasonable publication of the 2020 Sourcebook.
  • The Commission’s website traffic increased by more than 20% for the second year in a row, demonstrating that interest in the Commission's work by sentencing courts, Congress, the Executive Branch, and the general public continues to increase.
  • The Commission launched a new Interactive Data Analyzer--a tool for Congress, judges, litigants, the press, and the general public to easily and independently analyze sentencing data by their state, district or circuit, and refine their inquiry by a specific crime type or time period.
  • COVID-19 forced the Commission to suspend all in-person training and seminars; however, the Commission’s ongoing investments in eLearning allowed its training efforts to continue unabated.
  • The Commission collected, analyzed, and reported data on implementation of the First Step Act of 2018, and continued its recidivism research to help inform Congress and others on how best to protect public safety while targeting scarce prison resources on the most dangerous offenders.

FY20 Fast Facts

The Sourcebook presents information on the 64,565 federal offenders sentenced in FY20 — a sentencing caseload that decreased by nearly 12,000 cases from the previous fiscal year.

  • Immigration, drug trafficking, firearms, and fraud crimes together comprised 86% of the federal sentencing caseload in FY20.
  • Immigration was the most common federal crime type sentenced, accounting for 41% of the caseload (up from 38% in FY19).
  • Methamphetamine continued to be the most common drug type in the federal system, and a steadily growing portion of the drug caseload (up from 31% in FY16 and 42% in FY19 to 46% in FY20).
  • Methamphetamine trafficking continued to be the most severely punished federal drug crime (holding steady at an average sentence of 95 months). (Average sentences across all other major drug types (crack cocaine, powder cocaine, heroin, and marijuana) decreased.)
  • Two-thirds (67%) of drug offenders were convicted of an offense carrying a mandatory minimum penalty, up slightly from the previous year (66%).
  • Three-quarters (74%) of federal offenders were sentenced under the Guidelines Manual in FY20.

March 15, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Friday, March 12, 2021

Wonderful new Federal Sentencing Reporter issue explores "Weinstein on Sentencing"

M_fsr.2021.33.3.coverI am so very pleased to report on the publication of the latest issue of the Federal Sentening Reporter.  This issue is titled "Weinstein on Sentencing" and it celebrates the many contributions to federal sentencing law, policy and practice by legendary EDNY Judge Jack Weinstein.

FSR was quite fortunate to get two of Judge Weinstein's former clerks, Carolin Guentert and Ryan Gerber, to organize this great new issue.  They did a wonderful job gathering an array of perspectives in an issue that includes a considerable number of original articles under the heading "Celebrating Judge Weinstein" as well as excerpts from Judge Weinstein's past opinions and articles under the heading "Weinstein In His Own Words." 

I highly encourage everyone to check out this full FSR issue, and here is a list of the original articles:

Guest Editors’ Observations: Judge Weinstein's Contributions to Sentencing Law by Carolin E. Guentert & Ryan H. Gerber

Weinstein on Sentencing by Kate Stith

Jack B. Weinstein Up Close by John Gleeson

Jack Weinstein: Reimagining the Role of the District Court Judge by Jessica A. Roth

Serving a Rehabilitative Goal: Assessing Judge Jack B. Weinstein’s Supervised Release Jurisprudence by Christine S. Scott-Hayward

A Judge’s Attempt at Sentencing Consistency After Booker: Judge Jack B. Weinstein’s Guidelines for Sentencing by Carolin E. Guentert & Ryan H. Gerber

Hanging Up the Robe by Thomas Ward Frampton

Sentencing with Love, Not Hate by Deirdre D. von Dornum

March 12, 2021 in Federal Sentencing Guidelines, Recommended reading, Who Sentences | Permalink | Comments (1)

Sunday, March 07, 2021

Senators Durbin and Grassley re-introduce "Prohibiting Punishment of Acquitted Conduct Act"

Back in 2019, I was pleased to be able to blog here about a legialative effort to prohibit judicial reliance on "acquitted conduct" in the federal sentencing system.  I am now pleased to now be able to again highlight that Senators Dick Durbin and Chuck Grassley are again the bipartisan sponsors of the latest version of the "Prohibiting Punishment of Acquitted Conduct Act."  This March 4 press release from Senator Durbin's office provides these details:

U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, and Senator Chuck Grassley (R-IA), Ranking Member of the Senate Judiciary Committee, the lead sponsors of the landmark First Step Act, [on March 4] introduced the bipartisan, bicameral Prohibiting Punishment of Acquitted Conduct Act of 2021.  This legislation would end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury.  U.S. Representatives Steve Cohen (D-TN-09) and Kelly Armstrong (R-ND) plan to introduce House companion legislation next week.

“Under our Constitution, defendants can only be convicted of a crime if a jury of their peers finds they are guilty beyond a reasonable doubt.  However, federal law inexplicably allows judges to override a jury verdict of ‘not guilty’ by sentencing defendants for acquitted conduct.  This practice is inconsistent with the Constitution’s guarantees of due process and the right to a jury trial,” Durbin said.  “Our bipartisan, bicameral bill would make it clear that this unjust practice is prohibited under federal law.”

“If any American was acquitted of past charges by a jury of their peers, then some sentencing judge down the line shouldn’t be able to find them guilty anyway and add to their punishment. A bedrock principle of our criminal justice system is that defendants are innocent until proven guilty. The use of acquitted conduct in sentencing punishes people for what they haven’t been convicted of. That’s not acceptable and it’s not American. Back in 2014, Justices Scalia, Thomas and Ginsburg all agreed, but weren’t able to hear the case and stop the practice. Our bill will finally prohibit under federal law what many already find patently unconstitutional,” Grassley said....

Our criminal justice system rests on the Fifth and Sixth Amendment guarantees of due process and the right to a jury trial for the criminally accused.  These principles require the government to prove a defendant’s guilt beyond a reasonable doubt to a jury.  Under the Constitution, defendants may be convicted only for conduct proven beyond a reasonable doubt.   However, at sentencing, courts may enhance sentences if they find, by a preponderance of the evidence, that a defendant committed other crimes.  The difference in those standards of proof means that a sentencing court can effectively nullify a jury’s verdict by considering acquitted conduct....

The Prohibiting Punishment of Acquitted Conduct Act would end this practice by:

  • Amending 18 U.S.C. § 3661 to preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing, and
  • Defining “acquitted conduct” to include acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.

Along with Durbin and Grassley, the legislation is also cosponsored by Senators Patrick Leahy (D-VT), Mike Lee (R-UT), Cory Booker (D-NJ), and Thom Tillis (R-NC).

The Prohibiting Punishment of Acquitted Conduct Act is endorsed by the following organizations: National Association of Criminal Defense Lawyers, Due Process Institute, ALEC Action, American Civil Liberties Union, Americans for Prosperity, Americans for Tax Reform, Black Public Defenders Association, Digital Liberty, Dream Corps JUSTICE, Drug Policy Alliance, Fair Trials, Faith and Freedom Coalition, FAMM, Federal Public and Community Defenders, FreedomWorks, The Innocence Project, Justice Action Network, The Leadership Conference on Civil and Human Rights, National Legal Aid & Defender Association, Prison Fellowship, R Street Institute, Right on Crime, The Sentencing Project, Texas Public Policy Foundation, and Tzedek Association.

Bill text is available here.

A few of many, many prior related posts:

March 7, 2021 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Friday, March 05, 2021

Did a Sixth Circuit panel largely decimate the federal sentencing fraud guidelines (and perhaps many others)?

A helpful colleague made sure I found some time in a busy week to think about the Sixth Circuit's panel decision on Wednesday in US v. Riccardi, No. 19-4232 (6th Cir. Mar. 3, 2021) (available here). The Riccardi decision is the latest in a series of relatively new circuit rulings in which courts are declaring it improper and impermissible for the commentary to the federal sentencing guidelines to be applied in ways that expand the meaning of the actual guidelines (prior Sixth Circuit en banc example flagged here).

Riccardi seems like an especially big deal because it is focused on the commentary to the fraud guidelines, USSG § 2B1.1, which has an extensive accounting of how courts should account for the key factor of "loss" in the main guideline.  Here is how panel's majority opinion gets started: 

Jennifer Riccardi, a postal employee, pleaded guilty to stealing 1,505 gift cards from the mail. Most of these gift cards had an average value of about $35 for a total value of about $47,000.  The Sentencing Guidelines directed the district court to increase Riccardi’s guidelines range based on the amount of the “loss.” U.S.S.G. § 2B1.1(b)(1).  Yet § 2B1.1 does not define the word “loss.”  A search for its ordinary meaning might produce definitions such as “[t]he amount of something lost” or “[t]he harm or suffering caused by losing or being lost.”  American Heritage Dictionary of the English Language 1063 (3d ed. 1992).  Perhaps, then, the word is ambiguous on the margins.  Does it, for example, cover only financial harms or emotional ones too?  But one definition of “loss” that you will not find in any dictionary is the rule that the district court used for Riccardi’s stolen gift cards: a $500 minimum loss amount for each gift card no matter its actual value or the victim’s actual harm (which, for Riccardi, amounted to a total loss amount of $752,500).

Riccardi challenges the use of this $500 minimum loss amount, which comes from the Sentencing Commission’s commentary to § 2B1.1.  The commentary instructs that the loss “shall be not less than $500” for each “unauthorized access device,” a phrase that Riccardi concedes covers stolen gift cards. U.S.S.G. § 2B1.1 cmt. n.3(F)(i).  But guidelines commentary may only interpret, not add to, the guidelines themselves.  United States v. Havis, 927 F.3d 382, 386 (6th Cir. 2019) (en banc) (per curiam).  And even if there is some ambiguity in § 2B1.1’s use of the word “loss,” the commentary’s bright-line rule requiring a $500 loss amount for every gift card does not fall “within the zone of ambiguity” that exists. Kisor v. Wilkie, 139 S. Ct. 2400, 2416 (2019).  So this bright-line rule cannot be considered a reasonable interpretation of — as opposed to an improper expansion beyond — § 2B1.1’s text.  We thus reverse Riccardi’s sentence and remand for resentencing without the use of the commentary’s automatic $500 minimum loss amount for every gift card.

Though the part of the loss commentary found to be an "improper expansion" of the 2B1.1 guideline in Riccardi might seem like a quirky example, I suspect a good many fraud cases involve commentary that could be considered an "improper expansion" of the guideline term "loss."  For example, the commentary states that "loss is the greater of actual loss or intended loss," but can see a good argument that "intended loss" — which is loss that did not actually happen, but was part of the design of an offense — is not a reasonable interpretation of "loss."  Similarly, the commentary states sentencing judges "shall use the gain that resulted from the offense as an alternative measure of loss only if there is a loss but it reasonably cannot be determined." I feel pretty confident that "gain" is not really an interpretation of "loss."

Critically, the fraud guideline is not the only one important part of the federal sentencing guideline with an intricate set of commentary instructions that might be challenged as full of "improper expansions."  I sense a growing number of litigants and courts are starting to hone on potentially problematical guideline commentary and that some variation of this issue with be getting to the US Supreme Court before too long.  In the meantime, defense attorneys would be wise to challenge (and preserve arguments around) any application of guideline commentary that even might be viewed as "expansionary."

March 5, 2021 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"The Federal Sentencing Guidelines: Some Valedictory Reflections Twenty Years After Apprendi"

The title of this post is the title of this notable new paper authored by Frank O. Bowman III now available via SSRN. Here is its abstract:

In this contribution to the North Carolina Law Review's symposium on the twentieth anniversary of the Supreme Court's decision in Apprendi v. New Jersey, I offer a valedictory reflection on my own intellectual journey with sentencing reform and in particular with the Federal Sentencing Guidelines.

The account begins with my first encounters with the Guidelines when I was a zealous Assistant U.S Attorney, continues through my transition to teacher, scholar, policy advocate, and occasional sentencing consultant, and foreshadows a conclusion with me in the role of disillusioned curmudgeon muttering about might-have-beens as I shuffle towards my dotage.

The utility, if any, of these musings will lie partly in the fact that I have been up to my neck in Guidelines minutia for thirty years, but mostly in the fact that I have felt obliged to change my mind as events and experience challenged my previous convictions.  Some reconstruction of the evolution of my thinking as the Guidelines arose, failed, and died, but then achieved an enduring afterlife as law that is not really law at all, may be of modest use when the time finally comes to build something truly new.

March 5, 2021 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (0)

Wednesday, March 03, 2021

US Sentencing Commission issues big new report on "Federal Armed Career Criminals: Prevalence, Patterns, and Pathways"

The US Sentencing Commission has just released this big report providing "information on offenders sentenced under the Armed Career Criminal Act, including an overview of the Act and its implementation in the federal sentencing guidelines. The report also presents data on offender and offense characteristics, criminal histories, and recidivism of armed career criminals."  Here are the "Key Findings" appearing in the first part of the report:

Key Findings
• Armed career criminals consistently comprise a small portion of the federal criminal caseload, representing less than one percent of the federal criminal caseload.  During the ten-year study period, the number of armed career criminals decreased by almost half, from 590 in fiscal year 2010 to 312 in fiscal year 2019.
• Armed career criminals receive substantial sentences.  Offenders who were subject to the ACCA’s 15-year mandatory minimum penalty at sentencing received an average sentence of 206 months in fiscal year 2019.  Offenders who were relieved of the mandatory minimum for providing substantial assistance to the government received significantly shorter sentences, an average of 116 months in fiscal year 2019.
• Armed career criminals have extensive criminal histories. Even prior to application of the armed career criminal guideline, 90.4 percent of armed career criminals qualified for the three most serious Criminal History Categories under the guidelines, and almost half (49.4%) qualified for Criminal History Category VI, the most serious category under the guidelines. 
• The overwhelming majority of armed career criminals had prior convictions for violent offenses. In fiscal year 2019, 83.7 percent of armed career criminals had prior convictions for violent offenses, including 57.7 percent who had three or more such convictions.  Despite the predominance of violence in their criminal history, the most common prior conviction for armed career criminals was for public order offenses, with 85.3 percent having at least one such prior conviction.
• More than half (59.0%) of armed career criminals released into the community between 2009 and 2011 were rearrested within an eight-year follow-up period. When armed career criminals recidivated, their median time to rearrest was 16 months and the most serious common new offense was assault (28.2%).
• Recidivism rates of armed career criminals varied depending on whether they had prior convictions for violent offenses and the number of such prior convictions.
      ◦ Nearly two-thirds (62.5%) of armed career criminals with prior violent convictions and no prior drug trafficking convictions, and more than half (55.0%) of armed career criminals with both prior violent and drug trafficking convictions were rearrested within the eight-year follow-up period.  In comparison, only 36.4 percent of armed career criminals with prior drug trafficking convictions and no prior violent convictions were rearrested during the study period, but there were only 12 such offenders.
     ◦ Furthermore, 61.7 percent of armed career criminals with three or more prior violent convictions were rearrested during the eight-year follow-up period compared to 48.9 percent of armed career criminals with one or two prior violent convictions

March 3, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Friday, February 05, 2021

"Narrating Context and Rehabilitating Rehabilitation: Federal Sentencing Work in Yale Law School’s Challenging Mass Incarceration Clinic"

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

The Challenging Mass Incarceration Clinic (CMIC) at Yale Law School has been representing clients in federal sentencing and state postconviction cases since 2016.  Drawing on a blueprint I set forth in a 2013 article, the clinic teaches a model of noncapital sentencing practice that builds on the best capital defense sentencing practices and seeks to transform judges’ and prosecutors’ assumptions about criminal sentencing.

In this article, I set forth CMIC’s theoretical underpinnings and detail our interdisciplinary, trauma-informed approach to sentencing advocacy and clinical practice.  I then describe CMIC’s case outcomes, including variances which have reduced each of our clients’ prison time an average of five years below the United States Sentencing Guidelines range and more than 18 months below prosecutors’ recommended sentences.  CMIC’s work has also produced innovations to traditional client-centered, holistic lawyering; enhanced approaches to working with experts; and yielded insights into the incorporation of defense-based victim outreach in appropriate cases.

Our experiences in CMIC raise several areas for future research, including whether the model will produce the kind of fundamental sentencing reform I predicted in my earlier work, and questions about fairness, risks, data, and scalability.  I am publishing this article with the hope and intention that other law school clinics will borrow from and improve on CMIC’s model.

February 5, 2021 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Thursday, January 28, 2021

New efforts to fix the ugly old problem of sentencing disparity for federal crack and powder cocaine offenses

As detailed in this press relase from Senator Cory Booker's office, "U.S. Senators Cory Booker (D-NJ) and Dick Durbin (D-IL), both members of the Senate Judiciary Committee, announced legislation that will finally eliminate the federal crack and powder cocaine sentencing disparity and apply it retroactively to those already convicted or sentenced."  Here is more:

After the passage of the Anti-Drug Abuse Act of 1986, sentencing for crack and powder cocaine offenses vastly differed. For instance, until 2010, someone caught distributing 5 grams of crack cocaine served the same 5-year prison sentence as someone caught distributing 500 grams of powder cocaine. Over the years, this 100:1 sentencing disparity has been widely criticized as lacking scientific justification. Furthermore, the crack and powder cocaine sentencing disparity has disproportionately impacted people of color.

The Fair Sentencing Act, introduced by Senator Durbin, passed in 2010 during the Obama administration and reduced the sentencing disparity from 100:1 to 18:1....  The Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act would eliminate the crack and powder cocaine sentencing disparity and ensure that those who were convicted or sentenced for a federal offense involving cocaine can receive a re-sentencing under the new law.

And FAMM has this press release highlighting advocates support for this effort to remedy a long-standing and ugly federal sentencing injustice.  Here are excerpts:

FAMM and Prison Fellowship have teamed up to launch the #EndTheDisparity Campaign to urge Congress to eliminate the disparity between crack and powder cocaine-related sentences. Both organizations are circulating petitions and are planning a series of activities to build public support for reform.

“We have been fighting to repeal unjust sentencing laws for 30 years, and we’ve seen no greater injustice than the crack-powder disparity,” said FAMM President Kevin Ring. “We were glad Congress reduced the disparity in 2010, but it’s time to finish the job. We must remove this racially discriminatory scheme from the criminal code.”

In 2010, an overwhelming bipartisan majority in Congress passed and President Barack Obama signed the Fair Sentencing Act, which reduced the crack-powder disparity from 100:1 to 18:1. Lawmakers acknowledged that the arguments for the original disparity had been proven incorrect; crack cocaine is no more addictive than powder and is not more likely to cause violent crime.

“The unequal treatment of crack and powder cocaine offenses is among the most glaring examples of racial discrimination in the criminal justice system,” said Heather Rice-Minus, Senior Vice President of Advocacy and Church Mobilization for Prison Fellowship. “There is no sound scientific reason to punish powder and cocaine offenses differently and more importantly, there is a moral imperative to repent from this injustice.”

Uncontroverted was the fact that lengthy mandatory minimum prison terms for crack offenses disproportionately harmed Black people.  Crack usage rates did not differ greatly between white and Black Americans, but more than 80% of federal crack convictions involved Black defendants.

While the Fair Sentencing Act greatly reduced the number of people subject to the mandatory minimum sentences for crack, Black people still make up more than 80 percent of federal crack convictions....

For more information and background on the disparity and campaign see the resources below:

January 28, 2021 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report, Who Sentences | Permalink | Comments (0)

Tuesday, January 26, 2021

"The U.S. Sentencing Commission’s Recidivism Studies: Myopic, Misleading, and Doubling Down on Imprisonment"

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

Recidivism is now the guiding principle of punishment and has become the new hallmark of criminal justice reform, as reflected in the U.S. Sentencing Commission’s recidivism project.  So far, the Commission has issued three reports in 2020 alone, which outline the parameters within which “safe” criminal justice reform can proceed.  Yet the overly broad definition of “recidivism” and the focus on easily measurable and static risk factors, such as prior criminal record, create a feedback loop.

The Commission’s work should come with a warning label.  Its recidivism studies should not be consumed on their own.  Instead, they must be read in conjunction with U.S. Probation and Pretrial Services recidivism research, which includes data on the impact of programming, treatment, and services on reentry success.  Yet, concerns about undercounting recidivism events drive the entire U.S. approach.  Western European studies reflect different philosophies and values that explain some of the underlying reasons for the dramatically different imprisonment rates on the two sides of the Atlantic.

These recidivism studies raise also questions about the Commission’s role.  Its ongoing preference for imprisonment indicates that it continues to consider itself the guardian of incarceration-driven guidelines.  The studies reenforce the status quo and the Commission’s role in it.  They threaten to propel us into data-driven selective incapacitation and continuously long prison terms for those with prior criminal records, all in the name of public safety.

January 26, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Monday, January 25, 2021

US Sentencing Commission publishes report on "Fentanyl and Fentanyl Analogues: Federal Trends and Trafficking Patterns."

The United States Sentencing Commission, despite its status as an incomplete agency due to the absence of confirmed commissioners for years, keeps churning out notable data reports.  Today brings this notable new publication, clocking in at 60 pages, titled "Fentanyl and Fentanyl Analogues: Federal Trends and Trafficking Patterns."  Here is this report's "Key Findings" from this USSC webpage:

January 25, 2021 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines | Permalink | Comments (0)

Tuesday, January 05, 2021

US Sentencing Commission releases more 2020 sentencing data revealing COVID's impact on federal sentencings

Regular readers know I have been keenly eager to see any US Sentencing Commission data providing a window into the COVID state of federal sentencing.  Back in October, as blogged here, the USSC released here its "3rd Quarter ... Preliminary Fiscal Year 2020 Data Through June 30, 2020."  And I just saw that yesterday, the USCC released here its 4th Quarter ... Preliminary Fiscal Year 2020 Data Through September 30, 2020." 

These new data provide another official accounting of federal sentencing outcomes that make clear that COVID concerns dramatically reduced the number of federal sentences imposed in the third and fourth quarters of Fiscal Year 2020.  Specifically, as reflected in Figure 2, it appears that the previous three quarters averaged roughly 20,000 federal sentencings, whereas the quarter ending in June 2020 saw only around 12,000 federal sentences imposed and the quarter ending in September 2020 had about 13,000 sentencings. 

Digging into these numbers, Figure 2 also reveals that the mix of cases being sentenced changed considerably from quarter 3 to quarter 4 in 2020.  In quarter 3, all major categories of cases declined considerably in total number sentenced.  But in quarter 4, immigration cases kept declining while drug, firearm, and economic cases bounced back somewhat closer to "pre-COVID normal."  (Of course, quarter 4 ended in September 2020 before the big second wave of COVID cases; it will be interesting to see what case processing data looks like in in quarters 1 and 2 of Fiscal Year 2021.) 

Critically, the change in the caseload would seem to help explain a dramatic uptick in average sentence imposed during the last quarter of FY 2020.  As detailed in Figure 5, average sentences pre-COVID were pretty stable, clocking in each quarter for many years between 38 and 43 months.  But in the quarter ending in June 2020, the average federal sentence averaged only roughly 30 months; but in the next quarter ending in September 2020, the average sentence jumped to nearly 48 months.  This leads me speculate that the sentencings that went forward during the early COVID period may have generally been the less serious cases; into the late summer, it would appear, more serious cases moved forward to sentencing despite COVID concerns.  In addition, because immigration cases typically have lower sentences than drug, firearm, and economic cases, the average sentence for all cases is likely to increase when the number of immigration cases in the pool declines so considerably.

In sum, these latest USSC data show that the total number of federal sentences imposed in the first six months of the COVID era (April to September 2020) dropped about 30% below historical normal, but the mix of cases and the length of the sentences imposed in this period varied dramatically between the two quarters of existing USSC data.  Very interesting, and now I am even more eager for the next data run and for even more intricate reporting and analysis from the US Sentencing Commission.

January 5, 2021 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Impact of the coronavirus on criminal justice | Permalink | Comments (0)

Monday, December 14, 2020

US Sentencing Commission issues big new report on "The Influence of the Guidelines on Federal Sentencing: Federal Sentencing Outcomes, 2005–2017"

I am pleased to see that the United States Sentencing Commission is continuing to release notable data reports despite being an incomplete agency due to the absence of confirmed commissioners for years.  Today brings this notable new publication, clocking in at nearly 100 pages, titled "The Influence of the Guidelines on Federal Sentencing: Federal Sentencing Outcomes, 2005–2017."  Here is this reports "Key Findings": 

In this report, the Commission analyzes the difference between average guideline minimums and average sentences imposed.  These differences, measured in a raw number of months and average percentage difference, are analyzed for all cases in the aggregate and selected individual guidelines across three time periods between 2005 and 2017: the Booker, Gall, and Post-Report Periods.  While the extent of those differences vary depending on the individual guideline, the Commission found several overarching trends indicating that the guidelines generally continue to have a substantial influence on sentences imposed after Booker.

  • In the wake of Booker and Gall and continuing into the Post-Report Period, the difference between the average guideline minimum and average sentence imposed widened for the federal caseload overall, indicating that the influence of the guidelines generally decreased after Booker rendered them advisory.  However, this trend has not continued in the most recent years of the Post-Report Period, suggesting that the influence of the guidelines may have stabilized.

  • The influence of the guidelines continued to vary substantially depending on the type of offense throughout the Post-Report Period.  As indicated by the difference between the average guideline minimum and average sentence imposed, the guidelines continued to exert a strong influence on sentences imposed in firearms and illegal reentry offenses, a more moderate influence on sentences imposed in fraud and drug offenses, and a weakening influence in non-production child pornography offenses and career offender cases.

  • Major amendments by the Commission to the drug trafficking and illegal reentry guidelines appear to have strengthened their influence during the most recent years of the Post-Report Period.  The difference between the average guideline minimum and average sentence imposed for these two guidelines narrowed after the Commission reduced the Drug Quantity Table by two offense levels in 2014 and comprehensively revised the illegal reentry guideline in 2016.

  • The guidelines generally exert a greater influence on sentences imposed in cases in which judicial discretion could be meaningfully assessed.  Excluding cases in which judicial discretion could not be meaningfully assessed narrowed the difference between the average guideline minimum and the average sentence imposed for the federal caseload overall, and for all but one individual offense type studied, across every time period studied.  This narrowing was largely attributable to the exclusion of cases with substantial assistance departures, which resulted in an average sentence reduction of 51.8 percent.  Sentence reductions for substantial assistance require a government motion and afford substantial weight to the government’s evaluation.

In short form, and at the risk of being too flip or summary about these findings, I take this all to mean that the USSC has through its data analysis found: (a) federal judges generally follow the less-crazy-severe guidelines somewhat more than the more-crazy-severe guidelines, AND (b) when the USSC finally gets around to amending the guidelines to make some of the more-crazy-severe guidelines a bit less crazy-severe, judges are inclined to follow those guidelines a bit more.  Oh, and (c) we really have no clear idea what the heck may be going on when prosecutors exercise their discretionary sentencing powers through substantial assistance departures (since, I assume, the DOJ shares no information with the USSC about the decision-making of federal prosecutors).

December 14, 2020 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 (4)

Wednesday, October 28, 2020

Digging carefully into what the FIRST STEP Act has, and has not, really achieved

Malcolm C. Young, a long-time justice reform advocate, sent me an interesting new report he has completed titled "How Much Credit Should Trump be Given for the First Step Act?".  This new report, which I recommend in full, is a continuation of some research which was recently published in the Journal of Community Corrections under the title "The First Step Act and Reentry."  That Fall 2019 article makes the case that "as a law intended to improve federal reentry, the FSA falls short."  Young's new report, which can be downloaded below, is a detailed effort to pushback on some of Prez Trump's claims about "his" achievements through the FIRST STEP Act.  Here is an excerpt from the start of the report:

Trump is entitled to take credit for signing the FSA into law and the reductions in the federal prison use that followed. But the FSA, which was drafted by legislators, is neither the first nor the largest reform in recent years.  For examples, a reform in sentences for crack cocaine at the close of the George Bush administration reduced the use of federal prisons by close to three-quarters of the reduction obtained from the FSA.  A downward adjustment in drug sentences that cleared the United States Sentencing Commission (USSC) during the Obama administration resulted in nearly half-again as much a reduction in prison use (146%) as resulted from the FSA at the end of its first year.  And, finally, including the downward adjustment in drug sentences, Obama-era reforms resulted in more than double (230%) the FSA’s reduction in prison use in its first year.

As to benefits for Black Americans, the FSA’s reductions in sentences for crack cocaine benefited Black individuals disproportionally, as intended, yet very little more than did three similarly structured reforms intended to alleviate racial disparities in federal drug sentencing.  The FSA’s other provisions benefit smaller proportions of Black individuals.

As to reentry, the Trump administration's claim that, “[t]he landmark First Step Act enacted commonsense criminal justice reform that is helping prisoners gain a new lease on life and is making America safer” is, regrettably, simply not true.  These aspects of the FSA are not working.  But the fault lies more with Congress than Trump.

Download Trump and the First Step Act October 2020

October 28, 2020 in Campaign 2020 and sentencing issues, Criminal justice in the Trump Administration, Drug Offense Sentencing, Federal Sentencing Guidelines, FIRST STEP Act and its implementation, Prisons and prisoners, Race, Class, and Gender, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

Monday, October 26, 2020

US Sentencing Commission releases data revealing COVID's impact on federal sentencings

Regular readers know I have been complaining for many months about the general failure of the US Sentencing Commission to address or release data concerning the COVID state of federal sentencing (example here).  But as of today, I cannot complain quite so much because the US Sentencing Commission has just released here its "3rd Quarter ... Preliminary Fiscal Year 2020 Data Through June 30, 2020."

These new data provide the first official accounting of federal sentencing outcomes for the period from October 1, 2019 through June 20, 2020, and it is clear from these data that COVID concerns dramatically reduced the number of federal sentences imposed in the quarter comprised of the months of April, May and June 2020.  Specifically, as reflected in Figure 2, it appears that the previous three quarters averaged roughly 20,000 federal sentencings, whereas the quarter ending in June 2020 saw only around 12,000 federal sentences. This is still a lot of sentencings, but seemingly the lowest quarterly number in decades.

In addition, as reflected in Figure 5, it appears that, along with total number of imposed sentences decreasing, so too did the average sentence imposed decrease significantly during the quarter ending in June 2020.  Specifically, it appears that the previous quarters had federal sentences averaging roughly 38 months, whereas the quarter ending in June 2020 saw federal sentences averaging roughly 30 months.  This leads me speculate that the sentencings that went forward during the COVID period may have generally been the less serious cases and/or that many federal judges were somewhat less inclined to impose longer federal prison terms during the COVID era.

In sum, these latest USSC data show that the number of sentences imposed in the first COVID quarter (April to June 2020) dropped about 40% and the length of the sentences imposed in this period drop over 20%.  Very interesting, and now I am even more eager for the next data run and for even more intricate reporting and analysis from the US Sentencing Commission.

October 26, 2020 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Impact of the coronavirus on criminal justice | Permalink | Comments (0)

Wednesday, September 30, 2020

Heiress involved in NXIVM group gets way-above-guideline sentence

I have not really been following the NXIVM saga at all, but today brought a first federal sentencing case that caught my attention. This local article, headlined "Clare Bronfman receives more than six years for NXIVM crimes Federal judge exceeds sentence prosecutors had been seeking," provides these details:

Heiress Clare Bronfman was sentenced Wednesday to six years and nine months in federal prison for crimes related to her leadership role in NXIVM. She was taken directly into federal custody at the end of the court proceeding.

The sentence was handed down to the 41-year-old daughter of late Seagram's tycoon Edgar Bronfman in a Brooklyn courtroom after several victims related their painful experiences dealing with the well-heeled backer of Keith Raniere’s cult-like organization.

A number of former NXIVM members delivered victim impact statements to Senior U.S. District Judge Nicholas Garaufis. One of those women was Barbara Bouchey, a former girlfriend of Raniere's who faced years of retaliation by NXIVM after she left the group more than a decade ago. She called Garaufis' sentence justice served: “When I heard him say 81 months, I was speechless,” Bouchey said.

Bronfman, who has homes in Clifton Park and Manhattan, was anticipating a sentence of just 21 to 27 months in prison under sentencing guidelines for her guilty plea to conspiracy to conceal and harbor illegal aliens for financial gain, and fraudulent use of identification.

Garaufis had made it clear he was considering an "above guidelines" punishment. Her recently hired attorneys, Ronald S. Sullivan Jr. and Duncan Levin, have asked for three years of probation. Federal prosecutors in Brooklyn’s Eastern District have asked for a five-year prison sentence. Garuafis went beyond both requests. He also levied a $500,000 fine on Bronfman.

Prosecutors said Bronfman, who was in NXIVM alongside her older sister, Sara Bronfman-Igtet, used her wealth to recruit immigrants – usually women – into NXIVM-related groups under the idea that they would get a scholarship or work. But Bronfman instead got a work-force of recruits desperate to earn a living and who were dependent on her and NXIVM to stay in the country.  Prosecutors have said Bronfman helped Raniere target the company’s perceived enemies, which included members of the organization who defected....

Raniere, 60, a longtime Halfmoon resident known in NXIVM as “Vanguard,” was convicted at trial last year of all charges, which included sex trafficking, forced labor conspiracy and racketeering charges that included underlying acts that included child exploitation, possession of child pornography, identity theft, extortion, fraud and other crimes.  He faces the possibility of life in prison at his sentencing on Oct. 27.

This New York Times article reporting on the sentencing notes why this case may end up in the Second Circuit: "Ronald Sullivan, a lawyer for Ms. Bronfman, said he would appeal the sentence, calling it an 'abomination'."

September 30, 2020 in Celebrity sentencings, Federal Sentencing Guidelines, White-collar sentencing | Permalink | Comments (1)

Saturday, September 26, 2020

"The Perils of 'Old' and 'New' in Sentencing Reform"

The title of this post is the title of this notable new essay authored by Jessica Eaglin now available via SSRN. Here is its abstract:

The introduction of actuarial risk assessment tools into the sentencing process is a controversial, but popular trend in the states.  While tools' proliferation is debated from numerous angles, scholarship tends to emphasize why this reform is new or old, and focus on whether and how this trend may improve or undermine sentencing law and policy.  This Essay suggests that the institutionalization of actuarial risk assessments into the sentencing process in response to social and political critiques of criminal administration is both a new and old idea.  It situates the proliferation of actuarial risk assessments in the context of technical guidelines created to structure and regulate judicial sentencing discretion in the 1980s and beyond.  It then examines debates about two conceptual issues — selective incapacitation and equality — to highlight that technical sentencing reforms raise recurring questions at sentencing, even as social perspectives on resolving those questions are shifting.

Rather than using the "old" nature of these issues as evidence that actuarial risk assessments should proliferate, however, this Essay urges critical reflection on the turn toward the technical in the present day, in the face of mass incarceration.  It urges scholars to dispense of the "old" and "new" concept when reflecting on whether and why actuarial risk assessments are proliferating in the states.  It also encourages scholars to draw on the expansive methodological approaches applied to study of sentencing guidelines when considering this reform going forward.

September 26, 2020 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Technocorrections, Who Sentences | Permalink | Comments (0)

Sunday, September 20, 2020

Spotlighting notable series of substantive reasonableness reversals by the Sixth Circuit

A helpful reader sent me this thoughtful review of some notable recent reasonableness rulings by the Sixth Circuit:

The review of sentences for substantive reasonableness is often thought of as toothless, or as a “one-way ratchet” toward more severe sentences.  Of the countless appeals challenging sentences as overly harsh, only a couple of dozen have prevailed.  (Government appeals challenging sentences as too lenient seem to have found more success).  Appellate courts have been far more willing, on a defendant’s appeal, to say the sentencing court failed to follow proper procedures than to say the sentence was just too long.  In a trio of recent 2-1 decisions, however, the Sixth Circuit has done just that, reversing above-Guidelines sentences where there was an insufficient justification for the upward variance and putting some substance into substantive reasonableness review.

This line of cases started with United States v. Perez-Rodriguez, where the Sixth Circuit reversed an above-Guidelines sentence of 24 months in an illegal re-entry case where the Guidelines range was 8 to 14 months. 960 F.3d 748 (6th Cir. 2020).  Over a dissent, the Court held that the upward variance was substantively unreasonable because this was a “mine-run” case where the upward variance was unjustified and “created unwarranted sentencing disparities.” (Interestingly, in doing so, Judge Stranch drew on her opinion in United States v. Boucher, 937 F.3d 702 (6th Cir. 2019), where the court had held that a sentence of just 30 days for Rand Paul’s attacker, when the Guidelines range was 21 to 27 months, was substantively unreasonable because it was a “mine-run case.” Thus, at least in this instance, the ratchet went both ways.)

In the less than four months since Perez-Rodriguez, the Sixth Circuit has twice struck down above-Guidelines sentences as substantively unreasonable, each time over a vigorous dissent.  In United States v. Lee, the court held that a sentence of 60 months for possession of a stolen firearm, when the Guidelines range was 30 to 37 months’ imprisonment, was “far too long for his offense of conviction” and that the sentencing court “placed too much weight on Lee's criminal history, and not enough weight on the need to treat like defendants alike.”  __ F.3d __, 2020 WL 5269820 (6th Cir. Sept. 4, 2020). Then, in United States v. Brown, relying on Perez-Rodriguez and the unpublished 2-1 decision in United States v. Warren, 771 F. App’x 637 (6th Cir. 2019), the Sixth Circuit again held that an above-Guidelines sentence of 60 months for distributing heroin was substantively unreasonable because this was a “mine-run case” and the upward variance from the Guidelines range of 24 to 30 months would create “unwarranted sentencing disparities.” __ F. App’x __, 2020 WL 5569677 (6th Cir. Sept. 17, 2020).         

It’s hard to say whether this recent spate of substantive reasonableness reversals reflects an increasing recognition by (some) federal appellate judges of the realities of mass incarceration and overly harsh sentences, or simply a lucky streak by defendants.  Cutting in favor of the latter interpretation is that both Brown and Perez-Rodriguez are sentencing appeals from the same district judge — as was Warren — and that in each instance the sentencing judge upwardly varied even though the Government sought a Guidelines sentence.  These reversals may, then, simply reflect an attempt by appellate judges to rein in a particularly punitive district judge.  But I tend to think that this string of cases reflects an attempt to give some substance to substantive reasonableness review, and to use it as a tool to curb at least the most egregiously punitive sentences.  

Though the Sixth Circuit’s newfound willingness to find upward variances unreasonable in cases that fall within the heartland of the Guidelines is encouraging, it nonetheless is worth considering the limitations of this approach.  To begin with, it implicitly accepts that the Guidelines are the starting point for reasonableness review.  This is perhaps a natural outgrowth of the appellate presumption of reasonableness that the Sixth Circuit (and some but not all other circuits) afford to within-Guidelines sentences.  But it risks blunting the impact of Booker and Gall, which held that district courts must start by calculating the Guidelines range but then must proceed to give the sentence required by the factors enumerated in 18 U.S.C. § 3553(a), regardless of what the Guidelines may advise.  Accordingly, in certain districts such as the Southern and Eastern Districts of New York, only a quarter of sentences have been within-Guidelines in recent years.  In the view of many district judges, it seems, the proper sentence for a “mine-run case” is a below-Guidelines one. 

Indeed, anyone with a working knowledge of the Sentencing Guidelines — or any regular reader of this blog — is likely familiar with just how harsh the Guidelines can be.  Yet the approach of Perez-Rodriguez requires only that above-Guidelines sentences provide sufficient justification; it offers no path to challenging harsh but below- or within-Guidelines sentences.  A more robust appellate review of the reasonableness of above-Guidelines sentences is certainly welcome, but it is not by itself a panacea for the ills of mass incarceration. 

I am always grateful for (and eager to post) any and all caselaw reviews, so I thank this author and encourage others to help me track and report on lower court sentencing developments like this one.

September 20, 2020 in Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Thursday, September 17, 2020

Finding a silver lining in new report on Prez Trump's disappointing nominees to US Sentencing Commission

The Marshall Project has this new mostly depressing article about the troubling slate of US Sentencing Commission nominees announced by Prez Trump last month (basics here).  Even the headline of the piece, "Before Election, Trump Tries To Stack Prison-Sentencing Agency With Right Wing Allies," is telling and depressing since the US Sentencing Commission should be a whole lot more than a "Prison-Sentencing Agency" even though this is a disconcertingly fitting descriptor. 

In any event, ever eager to find a silver lining, I found a few passages in the article somewhat indirectly encouraging.  I have bolded below what seems "not so bad" amdist an otherwise disconcerting piece: 

The commission is required by law to be bipartisan and to represent a diversity of backgrounds.  But Trump has broken from that precedent by proposing to fill the agency’s five empty seats with appointees who are nearly all white male former law enforcement officials.  And Senate Majority Leader Mitch McConnell may, in the final months before the end of the president’s term, try to confirm these nominees, according to five Senate Judiciary Committee staffers as well as several advocacy groups.

“We’re worried they’re trying to cram these appointments through in case Trump loses,” said Kevin Ring, president of the advocacy group Families Against Mandatory Minimums....  The president’s nominees include Judge Henry E. Hudson, a federal judge in Virginia known as “Hang ‘Em High Henry,” who once said, “I live to put people in jail.”  Hudson, a former prosecutor and former director of the U.S. Marshals Service, led a Reagan administration anti-pornography commission that claimed that viewing sexual images causes sex crimes....

Also among the president’s picks for the commission is Judge K. Michael Moore of Florida, another former prosecutor and another former director of the U.S. Marshals.  In 2015, Moore sent a nonviolent first-time drug offender to prison for 20 years, a sentence so extreme that Trump commuted it four years later.

Other nominees include Judge Claria Horn Boom of Kentucky, a former prosecutor championed by McConnell, and John G. Malcolm, a former prosecutor who is now the director of a judicial studies program at the conservative Heritage Foundation.  The lone non-prosecutor in the group is Judge Luis Felipe Restrepo of Pennsylvania, a former public defender nominated to the federal bench by former President Obama....

Trump has said little publicly about his nominees, perhaps to avoid drawing media attention that could complicate their confirmation by the Senate Judiciary Committee.  Senator Kamala Harris, the Democratic vice presidential nominee, is a member of that committee, as are some Republicans — including Chuck Grassley of Iowa and Mike Lee of Utah — who have supported some efforts to moderate harsh sentencing.

Judiciary Committee staffers said that one or two of Trump’s picks may get confirmed, but probably not all.  Reform advocates say there is not enough time to properly evaluate the candidates, and that any vote on them should wait until next year.  “During normal times, the wonkiness of nominees to the Sentencing Commission might have allowed the package to move forward,” said David Safavian, general counsel of the American Conservative Union and an advocate of sentencing reform.  “But it’s too easy for Democrats to demagogue Henry Hudson.” 

Spokespeople for McConnell and for Sen. Lindsey Graham, the chairman of the Judiciary Committee, did not respond to requests for comment as to whether there will be a confirmation hearing in the coming months....

Legal experts see William Barr’s hand in this slate of nominees consisting of nearly all former Justice Department prosecutors. “Prosecutors always say, ‘We don’t make the law, we just enforce it,’” said Safavian of the American Conservative Union.  But choosing this group of appointees to set federal sentencing rules, he said, “is one of many examples of how that is not at all true.”

The fact that this piece indirectly quotes Senate staffers indicating that "one or two of Trump’s picks may get confirmed, but probably not all" seems to me a sign that this slate of nominees in this form is very unlikely to be "rubber stamped" by the current GOP-led Senate anytime soon.  In addition, the fact Prez Trump and Senators Graham and McConnell do not seem to be at all eager to talk up these nominees is another reason to think they are unlikely to sail through the confirmation process.  And if ultimately just a couple of nominees, especially John Malcolm and Judge Restrepo, were to get through the process, we might even hope to see this dormant judicial agency moving in the right direction sooner rather than later.

But this optimistic tea-leaf reading from someone way outside the Beltway may be just a kind of naive wishful thinking about what is really afoot with USSC nominations inside the Beltway.  Regardless of the election results, I could still imagine a world in which the current GOP-led Senate uses the lame duck months to confirm many if not all of this Trumpian slate.  And I presume if Trump is reelected and the Senate remains in GOP control, this folks in this slate of nominees are functional front-runners for the USSC's open slots even if those slots do not get filled into 2021 or beyond.

Prior related posts:

September 17, 2020 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Monday, August 31, 2020

US Sentencing Commission issues big new report on "The First Step Act of 2018: One Year of Implementation"

Download (25)I am extremely pleased to see that the US Sentencing Commission this morning released this big new report (and this infographic) providing data and analysis on the impact of the First Step Act over the period it calls “First Step Year One” running from December 21, 2018 through December 20, 2019.  Importantly, though the report is titled "The First Step Act of 2018: One Year of Implementation," this document only examines key sentencing provisions and not all the prison reforms and other elements of the First Step Act. (As the start of the report explains: "This report examines the impact of five provisions of the First Step Act of 2018 related to sentencing reform.") 

In addition, and I think valuably, the report cover an entirely pre-COVID period and thus sets an interesting and important baseline for understanding the impact of the First Step Act before the pandemic may have changed things.  The most obvious change brought about by COVID was a sharp increase in the number of motions for compassionate release/sentence reduction, but I suspect there will be other impacts that will be reflected in future data.

With all that background, here are some "Key Findings" from the Introduction of the full USSC report:

REDUCING DRUG RECIDIVIST PENALTIES

Enhanced recidivist penalties imposed pursuant to 21 U.S.C. § 851 applied to fewer offenders in First Step Year One, as a result of the First Step Act’s narrowing of qualifying prior drug offenses. When enhanced penalties did apply, they were less severe than in fiscal year 2018.
• The number of offenders who received enhanced penalties decreased by 15.2 percent, from 1,001 offenders in fiscal year 2018 to 849 offenders in First Step Year One.
• The new 15-year enhanced mandatory minimum penalty, which was reduced from 20 years by the First Step Act, applied to 219 offenders in First Step Act Year One. By comparison, the 20-year enhanced mandatory minimum penalty applied to 321 offenders in fiscal year 2018....

EXPANDING SAFETY VALVE 

Offenders were more likely to receive relief from a mandatory minimum penalty or a reduction in sentence as a result of the First Step Act’s expansion of the safety valve eligibility criteria at 18 U.S.C. § 3553(f).
• In First Step Act Year One, of 13,138 drug trafficking offenders convicted of an offense carrying a mandatory minimum penalty, 41.8 percent (n=5,493) received statutory safety valve relief from the mandatory minimum penalty. By comparison, in fiscal year 2018, of 10,716 drug trafficking offenders convicted of an offense carrying a mandatory minimum penalty, 35.7 percent (n=3,820) received statutory safety valve relief.
• In First Step Act Year One, of 19,739 drug trafficking offenders, 36.1 percent (n=7,127) benefited from the safety valve, either by receiving relief from a mandatory minimum, a
guideline reduction, or a variance based on the new expanded eligibility criteria. By comparison, of 18,349 drug trafficking offenders, 32.1 percent (n=5,885) benefited from the safety valve in fiscal year 2018....

LIMITING 924(c) “STACKING”

The 25-year penalty for a “second or subsequent offense” under 18 U.S.C. § 924(c) applied less frequently in First Step Year One, as a result of the First Step Act’s limitation of the penalty to section 924(c) offenders with a final prior firearms conviction, as opposed to those with multiple section 924(c) charges in a single case....

RETROACTIVELY APPLYING THE FAIR SENTENCING ACT OF 2010

Since authorized by the First Step Act, 2,387 offenders received a reduction in sentence as a result of retroactive application of the Fair Sentencing Act of 2010....

COMPASSIONATE RELEASE

In the first year after passage of the First Step Act, 145 offenders were granted compassionate release under 18 U.S.C. § 3582(c)(1)(A), a five-fold increase from fiscal year 2018, during which 24 compassionate release motions were granted.

A lot could be said about these data and lots more in the report, but my short take away is that the sentencing revisions in the First Step Act largely achieved their intended goals and impacted a lot of cases, though they still have a relatively small impact on a massive federal criminal justice system.  For example, even though these data show that the First Step Act's expanded safety valve provision served to benefit roughly 1250 more federal drug defendants at sentencing, any system-wide benefit would seem to be largely eclipsed by the fact that the federal government brought roughly 1400 more drug cases into the federal system during First Step Year One.  When some federal drug sentences go down slightly, but the overall number of defendants being sentenced for drug cases goes up (and especially if the federal caseload increase involves mostly lower-level offenders), it is hard to get too excited about the impact of reform.

I do not want to throw cold water on the good news that this new USSC report represents.  Rather, I just want to stress that there is still a WHOLE lot more reform work needing to get done.  (There is also a whole lot more work needed to be done in analyzing this report, which I hope to be able to do in some subsequent posts.)

August 31, 2020 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, FIRST STEP Act and its implementation | Permalink | Comments (0)

Thursday, August 20, 2020

Leadership Conference urges Senate Judiciary Committee "not to advance" Prez Trump's slate of nominee to the US Sentencing Commission

I reported in this post last week about Prez Trump's (long overdue) nominations to the US Sentencing Commission, a critical criminal justice agency that has been crippled by having only two (of seven) Commissioners in place since the start of 2019.  In my prior post, I speculated that these nominations have been put forward too late in the year before a presidential election to likely move forward.  And now the Leadership Conference on Civil and Human Rights has written this letter to Senate Judiciary Chair Lindsey Graham and ranking member Dianne Feinstein to urge them to not advance these nominees.   Here is some of the text of the letter: 

On behalf of The Leadership Conference on Civil and Human Rights (The Leadership Conference), a coalition charged by its diverse membership of more than 220 national organizations to promote and protect civil and human rights in the United States, we write to urge the Judiciary Committee not to advance the slate of nominees to the United States Sentencing Commission that President Trump announced on August 12, 2020.  We are concerned that the four Republican nominees lack the diversity of race, viewpoint, and professional experience needed to reform a federal sentencing regime that has devastated communities of color for decades.  Our nation incarcerates people at a higher rate than any other country in the world.  The First Step Act of 2018 is proof of the bipartisan consensus in favor of changing this course.  But Senate confirmation of this homogeneous slate will delay meaningful sentencing reform and moves in the wrong direction at a moment when our nation demands a reckoning with structural and racial inequality....

[I]t is imperative that the Commission entrusted with such responsibility includes a diversity of experience and perspectives reflective of all individuals who move through federal courts. It is also no secret that policies are viewed as more legitimate if they are supported by diverse perspectives.  Considering the lack of diversity on the federal bench, a balance of viewpoints on the Commission is vital. While diversity on the Commission alone is not a cure-all for this nation’s mass incarceration crisis, it is key in fostering a more equitable system of justice....

Not a single Republican nominee is a person of color, and only one is a woman. As practitioners, each nominee’s experience with federal sentencing has been primarily through the lens of a prosecutor, U.S. Marshal, or both.  While these experiences are relevant to the Commission’s work, the disproportionate emphasis on them is not reflective of the diversity of background that Congress intended.  Moreover, the weight of these perspectives will worsen an already troubling bent towards law enforcement on the Commission, as the Department of Justice and the United States Parole Commission each have a designated ex officio member — an honor conspicuously not bestowed on any group that directly represents individuals in the federal legal system.  Two prospective nominees have particularly concerning records that suggest their inclusion on the Commission would hinder rather than redress this nation’s mass incarceration crisis. 

At a time when millions of people across this country are demanding that our institutions work to change course from the decades of systemic racism that have beget law enforcement brutality, it is more important than ever that the body charged with developing federal sentencing policy be representative of all people — particularly those upon whom it has had a disproportionate impact.  Past Commissions have taken important steps to address mass incarceration, from lowering the offense levels under the guidelines for drug trafficking offenses in 2014 to advocating as early as 1995 for parity between crack and powder cocaine.  The nominees recently proposed by President Trump, however, if confirmed by the Senate, are likely to undermine this progress by perpetuating outdated beliefs and confounding bipartisan efforts to reform our nation’s harsh sentencing practices.  We must not risk veering off the path towards meaningful sentencing reform. For these reasons, we urge the Judiciary Committee to reject the proposed slate of nominees for the U.S. Sentencing Commission, and to work to ensure that the Commission’s composition embodies the congressional intent of a diverse Commission membership. 

Prior related posts:

August 20, 2020 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Wednesday, August 19, 2020

Reviewing reservations about Prez Trump's latest slate of US Sentencing Commission nominees

Law360 has this effective new piece highlighting concerns about the make-up of the slate of US Sentencing Commission nominees announce by Prez Trump last week (basics here). The piece is headlined "Why Trump's Sentencing Panel Picks Worry Reform Boosters," and I recommend in in full.  Here is how it begins:

President Donald Trump has tapped five people for the influential commission that sets guidelines for federal prison sentences, but advocates for change on both the left and the right are calling the slate "antithetical to reform" and urging senators not to confirm the picks.

Prior related posts:

August 19, 2020 in Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Friday, August 14, 2020

FAMM urges Senators to "refrain from filling the vacancies" on the US Sentencing Commission until next year

I reported in this post earlier this week on Prez Trump's (long overdue) nominations to the US Sentencing Commission, a critical criminal justice agency that has been crippled by having only two (of seven) Commissioners in place since the start of 2019.  In my prior post, I speculated that these nomination have been put forward too late in the year before a presidential election to likely move forward.  And now I just saw this letter from the folks at FAMM to Senate Judiciary Chair Lindsey Graham and ranking member Dianne Feinstein urging them to refrain from filling the USSC vacancies until next year when the nominees can be properly vetted.  Here is some of the text of the FAMM letter:

The Senate’s role in shaping the composition of the U.S. Sentencing Commission has never been more important.  The commission will play a vital role in the continued implementation of the First Step Act.  The Senate must carefully consider whether nominees will faithfully implement the new reforms passed by Congress or whether they will seek to curtail them.  In addition, the commission must address a federal prison system that has been overwhelmed by the spread of COVID-19.  The deaths to date of 112 federal prisoners and at least one staff member compel serious reflection about various aspects of the federal prison system, including sentence lengths and early release mechanisms, over which the commission has some authority.

Finally, the committee must ensure that nominees to the Sentencing Commission are dedicated to addressing racial discrimination in our justice system.  The commission promulgates guidelines that are used to set prison terms for approximately 70,000 individuals of all races and backgrounds every year.  The legitimacy of those guidelines rests, in part, on the reasonable belief that the commissioners’ decisions are driven by data and evidence, not bias and ideology.  We believe that one important step the Senate can take to promote confidence in the commission’s work is to make sure that its members have diverse backgrounds, as well as varied life and work experiences.

Only seven individuals serve on the commission.  Each one is important.  Given the stakes, especially at this moment, the Senate must thoroughly examine each nominee before that person is awarded a six-year term.  Because there is not enough time left in this session to undertake this careful consideration, we strongly urge you to delay filling the commission’s vacant seats until January.

I do not think I am squinting too hard to read between the lines of this letter by suggesting that it seems one reason FAMM might like to waiting until 2021 to move forward is because FAMM hopes the person in charge of nominations in 2021 might not be the same person who put forward these nominations.

Prior related posts:

August 14, 2020 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Thursday, August 13, 2020

Prez Trump finally announces full slate of (unlikely to be confirmed?) new nominees for the US Sentencing Commission

As many readers may know, the US Sentencing Commission has lacked a full slate of Commissioners for the entirety of Trump Administration.  With only two (of seven) Commissioners in place since the start of 2019, the USSC has lacked a quorum and thus cannot complete any formal work (including a lot of work that should and needs to be done in response the the FIRST STEP Act).  Part of the problem, as I have covered in this space, was that at least one of the four nominees that Prez Trump put forward back in March 2018 was of great concerns to a great many.

Against this backdrop, I was intrigued to see two months ago this NPR report (which was blogged here) about a new slate of potential nominees, more than a few of which were considered controversial for their perceived punitiveness.  At that time, I speculated that I was unsure if even an uncontroversial slate of USSC nominees could get confirmed by the US Senate in the run up to the November election (or in the lame-duck period thereafter).   Not having heard anything on this front for two more months, I was unsure if the Trump Administration was even going to try to fill these spots in 2020. 

But yesterday brought this White House announcement, titled "President Donald J. Trump Announces Intent to Nominate and Appoint Individuals to Key Administration Posts."

Today, President Donald J. Trump announced his intent to nominate the following individuals to key positions in his Administration:

Judge K. Michael Moore, of Florida, as Chairman of the United States Sentencing Commission.

Judge Michael Moore serves as the Chief Judge of the United States District Court for the Southern District of Florida, a post which he has held since 2014.   Judge Moore was appointed to the Southern District of Florida by President George H. W. Bush in 1992.  Before his appointment to the Federal bench, Judge Moore served as the Director of the United States Marshals Service and as the United States Attorney for the Northern District of Florida.  Judge Moore also spent over a decade of service as an Assistant United States Attorney.

Judge Claria Horn Boom, of Kentucky, as a Commissioner of the United States Sentencing Commission. 

Judge Claria Horn Boom serves as a United States District Judge for the Eastern and Western Districts of Kentucky.  Judge Boom was appointed to the Eastern and Western Districts of Kentucky in 2019 by President Donald  J. Trump.  Before her appointment to the Federal bench, Judge Boom served as an Assistant United States Attorney in the Eastern and Western Districts of Kentucky and was in private practice in Lexington, Kentucky and Atlanta, Georgia.

Judge Henry E. Hudson, of Virginia, as a Commissioner of the United States Sentencing Commission. 

Judge Henry Hudson serves as a Senior United States District Judge for the Eastern District of Virginia.  Judge Hudson was appointed to the United States District Court bench in 2002 by President George W. Bush.  Before his appointment to the Federal bench, Judge Hudson served as a Virginia Circuit Judge for Fairfax County, Director of the United States Marshals Service, as the United States Attorney for the Eastern District of Virginia, and as the Commonwealth’s Attorney for Arlington County, Virginia.

John G. Malcolm, of the District of Columbia, as a Commissioner of the United States Sentencing Commission. 

John Malcolm is Vice President for the Institute for Constitutional Government and the Director of the Meese Center for Legal & Judicial Studies at the Heritage Foundation.  Mr. Malcolm also serves as a Member of the Board of Directors of the Legal Services Corporation.  Mr. Malcolm previously served as the General Counsel at the United States Commission on International Religious Freedom, as a Deputy Assistant Attorney General in the Criminal Division of the Department of Justice, and as an Assistant United States Attorney for the Northern District of Georgia.

Judge Luis Felipe Restrepo, of Pennsylvania, as a Commissioner of the United States Sentencing Commission. 

Judge Phil Restrepo serves as a Circuit Judge of the United States Court of Appeals for the Third Circuit.  Judge Restrepo was appointed to the Third Circuit in 2016 by President Barack Obama.  Prior to his elevation to the Third Circuit, Judge Restrepo served as a United States District Judge for the Eastern District of Pennsylvania, a post to which he was also nominated by President Obama.  Prior to his service on the United States District Court, Judge Restrepo served for seven years as a United States Magistrate Judge, practiced privately, and served as an Assistant Federal Public Defender in the Eastern District of Pennsylvania.

Though I am always pleased to see the US Sentencing Commission getting some needed attention, I find this announcement puzzling and troublesome for various reasons.  For the most elemental of starters, the US Sentencing Commission is a judicial branch agency and not part of an executive administration.  Thus, I find it puzzling that this announcement speaks of Prez Trump's USSC nominations as involving "key positions in his Administration."  This is a small point, but I think a telling one, about both the importance and independence of the USSC (or lack thereof).

Next, I am troubled by the lack of diversity in these picks.  The NPR story a few months ago included a fitting quote on this front: "'The administration has put forth a slate that is all white, mostly male, and lacking in diverse experiences or backgrounds,' said Sakira Cook, director of the justice reform program at the Leadership Conference on Civil and Human Rights."  Moreover,  all but one of the new nominees are sitting federal judges when the two current USSC members are also both judges.  There is a remarkable irony here, I suppose, given that the GOP pushed during the Bush Administration to change the USSC's statutory charter so that instead of requiring at least three judges it allowed no more than three judges among the USSC's seven members (this composition requirement was changed back in later years).  Now, with Prez Trump as the head of the GOP, it seems he wants almost exclusively judges at the USSC. 

Last but not least, the USSC's statutory charter still states that "not more than four of the members of the Commission shall be members of the same political party."  These biographies suggest that four of these five nominees may be members of the GOP, even though there is already one GOP member on the USSC.  Of course, people can and do change party membership all the time for all sorts of reasons, but this political history still further aggravates my worry that this slate of nominees would not help create a diverse and balanced and dynamic US Sentencing Commission. 

Again, I am inclined to believe that it is unlikely for any slate of USSC nominees to get confirmed by the US Senate in 2020.  But now that it seems these nominations have been officially made, it would seem there is now a chance. 

Prior related posts:

UPDATE: A helpful exchange on Twitter allowed me to understand why these nominations are not quite a "full slate" for the USSC even though this slate has are five nominees and there are two current USSC members (Judges Charles Breyer and Danny Reeves).  I was told that current Commissioner Reeves will be leaving that role in October, so there will be one more open slot in a couple of months for another nominee.  And, consistent with the statutory need for "not more than four of the members of the Commission shall be members of the same political party," it would seem this nominee would need to be a Democrat.

August 13, 2020 in Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (3)

Sunday, July 26, 2020

A century after his birth, just a few choice quotes to celebrate Marvin Frankel, father of sentencing reform

81p9ffvBF7LA kind reader pointed out for me that exactly 100 years ago today, the late great Marvin Frankel was born.  Though he served in many roles through his career, I think of this historic figure as Judge Frankel because of his service on the US District Court and especially because he was a judge when he wrote his most famous book, Criminal Sentences: Law Without Order.  This book's criticisms of "lawless" sentencing practices played a huge role in the emergence of structured sentencing systems, and Judge Frankel has been frequently and widely described as the "father of sentencing reform."

Though there are many reasons not to love the form of certain reforms (like the federal sentencing guidelines) that Judge Frankel helped engender, there are no reasons not to love Criminal Sentences: Law Without Order.  The book is less than 125 pages, and seemingly every page is full of shrewd insights and rhetorical flourishes.  In addition to being among the most influential books of legal scholarship, Criminal Sentences: Law Without Order is simply a great (and still timely) read.  Though it is hard to put together a fitting tribute to Judge Frankel, it is easy to find quotes from his book to provide a flavor of his contributions a century after his birth. So, a taste:

at page 5: "[T]he almost wholly unchecked and sweeping powers we give to judges in the fashioning of sentences are terrifying and intolerable for a society that professes devotion to the rule of law."

at pages 17-18: "Conditioned in the direction of authoritarianism by his daily life in court, long habituated as a lawyer to the stance of the aggressive contestant, and exercising sentencing powers frequently without practical limits, the trial judge is not discouraged from venting any tendencies toward righteous arrogance. The books and the reliable folklore are filled with the resulting horror stories — of fierce sentences and denunciatory attacks upon defendants."

at page 21: "[S]weeping penalty statutes allow sentences to be 'individualized' not so much in terms of defendants but mainly in terms of the wide spectrums of character, bias, neurosis, and daily vagary encountered among occupants of the trial bench."

at page 39: "The question “Why?” states a primitive and insistent human need. The small child, punished or deprived, demands an explanation. The existence of a rationale may not make the hurt pleasant, or even just. But the absence, or refusal, of reasons is a hallmark of injustice.... The despot is not bound by rules. He need not account for what he does. Criminal sentences, as our judges commonly pronounce them, are in these vital aspects tyrannical."

at page 103: "The arbitrary cruelties perpetrated daily under our existing sentencing practices are not easy to reconcile with the cardinal principles of our Constitution.  The largely unbridled powers of judges and prison officials stir questions under the clauses promising that life and liberty will not be denied except by 'due process of law.'  The crazy quilt of disparities — the wide differences in treatment of defendants whose situations and crimes look similar and whose divergent sentences are unaccounted for — stirs doubts as to whether the guarantee of the 'equal protections of the laws' is being fulfilled."  

Final paragraphs concluding with a call for the creation of a "Commission on Sentencing":

The uses of a commission, if one is created, will warrant volumes of debate and analysis.  For this moment and for this writer, the main thing is to plead for an instrumentality, whatever its name or detailed form, to marshal full-time wisdom and power against the ignorance and the barbarities that characterize sentencing for crimes today....

Lawyers and judges, tending to be human, are not likely to greet with rampant enthusiasm demands for change in their settled ways.... So to any reader who has come to this concluding paragraph — but perhaps somewhat especially to the lay reader — I would urge that you not close the topic along with the book.  The topic has to do with monstrous evils perpetrated daily for all of us, and with our implicit or express acquiescence.  The need for change is clear.  Our justly proud awareness that "we the people" have the power should carry with it a corollary sense of duty.  It is our duty to see that the force of the state, when it is brought to bear through the sentences of our courts, is exerted with the maximum we can muster of rational thought, humanity, and compassion.

July 26, 2020 in Federal Sentencing Guidelines, Recommended reading, State Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Monday, July 20, 2020

"Forgotten by the Fair Sentencing Act and the First Step Act: Federal Methamphetamine Sentencing Reform"

The title of this post is the title of this new paper recently posted on SSRN and authored by Quincy Ferrill.  Here is its abstract:

This paper explores the issue of sentencing guidelines based on outdated premises and unfair treatment and the potential impacts of drug sentencing laws and enhancements not based on empirical data.  To address this problem, this paper proposes a bill, similar to the First Step Act, to both retroactively and prospectively lessen the effect of these capricious drug sentencing guidelines.

July 20, 2020 in Drug Offense Sentencing, Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (2)

Saturday, July 18, 2020

Washington and Lee Journal of Civil Rights and Social Justice explores federal sentencing realities and reform

The introductory essay I saw on SSRN (and blogged about here) altered me to the fact that the latest issue of the Washington and Lee Journal of Civil Rights and Social Justice has a full set of terrific-looking articles about the modern federal sentencing system.  Here are the titles and links:

Reforming Federal Sentencing: A Call for Equality-Infused Menschlichkeit by Nora V. Demleitner

Federal Sentencing: A Judge’s Personal Sentencing Journey Told Through the Voices of Offenders He Sentenced by Mark W. Bennett

Sentencing Disparities and the Dangerous Perpetuation of Racial Bias by Jelani Jefferson Exum

Article III Adultification of Kids: History, Mystery, and Troubling Implications of Federal Youth Transfers by Mae C. Quinn and Grace R. McLaughlin

Technology’s Influence on Federal Sentencing: Past, Present, and Future by Matthew G. Rowland

Crime and Punishment: Considering Prison Disciplinary Sanctions as Grounds for Departure Under the U.S. Sentencing Guidelines
by Madison Peace

July 18, 2020 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Recommended reading | Permalink | Comments (2)

Wednesday, July 15, 2020

"Reforming Federal Sentencing: A Call for Equality-Infused Menschlichkeit"

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

This piece, which serves as an Introduction to the Symposium Issue of the Washington and Lee Journal of Civil Rights and Social Justice, addresses both questions of pedagogy and federal sentencing. It starts by highlighting the value of a symposium on federal sentencing as a teaching, research, and advocacy tool before it turns to sentencing reform specifically.

Federal sentencing remains a highly contested area because it raises stark questions of equality and equitable treatment.  Sentencing has long been unfair to minority defendants, African Americans in particular, though the guidelines have in part mitigated racial disparities.  Still the injustices perpetuated through federal sentencing have reinforced larger racial biases and contributed to ongoing racial stereotyping.

Empirical research and today’s technology can help both decrease race-based differentials and bring about shorter and more rehabilitation-focused sentencing, as long as we have the will to follow their lead.  Ultimately, we need to bring compassion, mercy, and Menschlichkeit to sentencing. Criminal defendants are not the “other” but “of us.”  Those values need to be part of our legal experience and of legal education lest law become merely an exercise in logic or ideology.

July 15, 2020 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2)

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)